A screenshot of Forever21's homepage. Don't go too crazy with that rebel attitude.

In today’s “Isn’t that ironic?” news, Forever21 has threatened to sue Rachel Kane, the blogger behind WTForever21, saying that the site constitutes “trademark infringement, copyright infringement, unfair competition and dilution.”

Yes, the same Forever21 that often finds themselves on the receiving end of accusations of trademark infringement, copyright infringement and really blatant designer knockoffs.

Unfortunately, Jezebel is reporting that Kane is likely to buckle to pressure from Forever 21’s attorneys to remove her site. “Unless I can work something out with Forever 21, June 10 will be the last day for WTForever21.com,” she said.

We say unfortunately because this is reminiscent of the Facebook vs. Lamebook dispute we covered alongside the saga of the two the Coveteds. While we’re not lawyers, and nothing in this post should be taken as legal advice, we’re fairly certain any case Forever21 brought against Kane would be dismissed or resolved in her favor.

For one, the site is clearly labeled as not being affiliated with Forever21. Second, any respectable lawyer would probably have the case tossed out on summary judgment for the simple fact that parody, even against trademarked and copyrighted entities, is protected in the US. Online, offline, being able to make fun of people who have more money and power than you do is protected speech, and that’s been upheld even for really abhorrent people who mock and insult good people (see: Fred Phelps). If speech as ignorant and hateful as that is allowed to stand, we’d put money on Kane being able to mock and insult ugly clothes on a domain incorporating a copyrighted or trademark name, so long as she isn’t passing her site off or operating a similarly confusing site.

This is not the same as registering Forever22 and selling inexpensive designer influenced clothes, or registering Forever21.co and opening an e-commerce site. There’s a reason that popular companies buy negative versions of their domain like Domainsucks.com and others. It’s because in the few times where people have fought large companies, the large companies have lost.

This threatened suit, which seems to be for the purpose of engaging Kane in a protracted legal battle if she doesn’t concede to demands to remove her site, seems to fall on its face from a legal perspective and already makes Forever21 seem like a bit of a loser. It seems unlikely, but we really hope Kane does let Forever21 take this to court so a judge can tell them to WTFoff.

Can you identify which red sole shoe is YSL, and which is Christian Louboutin?

If you see a flash of red on the bottom of a woman’s shoe, your first thought might be that those shoes are by Christian Louboutin. That’s certainly what Christian Louboutin thinks your first thought will be, because they recently filed a lawsuit against Yves Saint Laurent in Manhattan which claims that “Defendants use of red footwear outsoles that are virtually identical to plaintiff’s Red Sole Mark,” and that the shoes “is likely to cause and is causing confusion, mistake and deception among the relevant purchasing public as to the origin of the infringing footwear.” {NYDN via the Cut}

This is certainly a unique case, given that Yves Saint Laurent isn’t exactly selling shoes at knockoff prices. Loboutin was one of the first designers to use a colored sole to brand his footwear, but should someone be able to trademark or copyright the placement of a color?

In the photo above, the color of the sole on the Yves Saint Laurent tribute sandal (left) does look a shade different from the color of the sole on the Christian Louboutin sandals (right).  It’s worth noting that the Yves Saint Laurent shoes are part of a collection that includes yellow sandals with a yellow sole, and the Cut says that the collection these shoes are from also includes navy shoes with navy soles, green shoes with green soles, etc.

The slight difference in shade might be a matter of photography and lighting though, and to someone who’s not an avid fashion fan, it’s not difficult to believe that someone could mistake the Yves Saint Laurent shoes for a pair of Louboutins based on the sole coloring. At $795 (the price of the YSL tribute sandals pictured), that doesn’t dilute the Louboutin brand in the same way that a $100 exact replica might, but it could certainly harm the positioning of red soled shoes being something exclusive to Christian Louboutin.

While we can certainly see, and support, Louboutin’s position in this case, we also have to wonder if it might set a bad precedent. Will Chanel be able to sue bag makers who create quilted leather goods? That wouldn’t just include counterfeiters, it would make Marc Jacobs and plenty of established fashion designers susceptible to punishment as well. When dots begin to take over fall wardrobes, will one designer decide that another’s look too similar to theirs?

Should this actually make it to court, we’ll be tracking the decision.

Late last week, Erin Kleinberg, Stephanie Mark and Jake Rosenberg launched a new fashion blog. The design was solid, the content striking and the concept – a peek inside the closets of fashion editors and insiders – met with enthusiasm. The name, however, was met with raised eyebrows. The Coveted is a fashion blog that focuses on Jennine Jacob’s personal style. Over the years, it’s been hosted on a blogspot URL, thecoveted.net and currently resides at the-coveted.com.

As of last week, The Coveted is also the aforementioned newly launched fashion blog, which resides at thecoveted.com.

Confused? Many fashion blog readers were when they realized that the blog at thecoveted.com (no hyphen) was not affiliated with Jacob’s existing blog (the-coveted.com), which has been using the name since 2007.

“Someone owned thecoveted.com for a long time, and did nothing with it,” says Jacob. “When the domain changed hands, I figured it might be a shop or another shopping portal, but certainly not a fashion blog.”

Every major fashion brand has had an experience with someone infringing on their brand online. While The Coveted confusion marks the first case we’ve seen in media, it’s hardly the only recent example of brands colliding over the rights to a web name.

Facebook currently has a lawsuit pending against TeachBook, an online community for teachers, and Lamebook, a humor blog that posts anonymized screenshots of Facebook users’ status updates. The reason? Facebook asserts that the inclusion of the word “book” dilutes their brand. Teachbook successfully trademarked the name, withstanding a challenge by Facebook. Both sites have refused to change their site names, but other sites have when threatened with legal action by Facebook.

So where does that leave the site owner who wants to protect against competitors who borrow a brand name full stop, as well as Goliath companies who have large legal teams? Simply put, it depends on the situation.

Roman Fichman is a New York based attorney who works with startups, and says “owners of trademarks are required to protect their registered marks from unauthorized use or from use that may dilute their mark, otherwise they stand to lose the protections and rights that are afforded to them.” He notes that to the average user, sometimes “this does not ‘jive’ with common sense.”

While the lawsuits may not seem fair “these 800lb gorilla companies are the type to try to go after any portion of their name,” according to Robert Siminski, a Michigan patent and trademark attorney. “Most companies can’t afford to fight Facebook. There aren’t many legal watchdogs willing to take on a Facebook either,” and the company knows this. The issue for both comes down to how likely a user is to be confused, however. “The fact that [Teachbook is] a social networking site as opposed to a business selling books to teachers creates more of an issue with Facebook,” he says. The fact that Lamebook can be presented as a parody or commentary site will put them in a stronger position when they have their day in court.

Simply put, if you find your website name targeted by a big brand, you’ll very likely end up in court if you don’t change your name. Your best shot at winning and keeping the right to your name is to present evidence that your website isn’t likely to be confused with the larger company’s due to different functionality or offerings.

When it comes to the case of the two Coveteds,  the case is a bit more clear.

“On its face, this looks like a stronger case of confusion than the Facebook/Teachbook example,” says Siminski. “Your trademark rights begin upon using the trademark, it has nothing to do with registration. If you have a broad enough audience, in essence you don’t always need a registration.”

“What can I say?” says Jacob. “It’s disappointing [thecoveted.com] never reached out to me. It’s disappointing someone with the last name Kleinberg is leaving less than sensitive comments about my blog on posts about the controversy. Most of all it’s a disappointing shift in this industry that’s been built on the communal support of dedicated bloggers. My hopes are that we can all reach a win-win situation, but at the moment, I’m not certain what that looks like.”

“There is probably a claim [for Jacob] at common law,” says Philip Marcus, a small business lawyer in Maryland who specializes in intellectual property.

“State/common law trademark laws may protect the first party to use a name,” Fichman explains. “A company can send a cease and desist letter based on state or common law trademarks even if that company does not have have a federally registered trademark.” While every case has to be evaluated based on its own facts, Fichman advises the “first thing that a startup should do before choosing a name is to check out the landscape and see if there are any competitors that have similar names that the chosen name may be confused with.” Regardless of size, he says those with or seeking a trademark should “be vigilant and possibly follow in Facebook’s steps in pursuing infringing parties.”

Plainly speaking, Kleinberg and Marks should have chosen a different name for their fashion blog once they became aware it might be confused with an existing, established fashion blog. While Jacobs has not registered for a federal trademark on “the Coveted” yet, she has both the right and responsibility to stop Kleinberg and Marks from using the name if she wants to protect her brand.

Speak Loudly and Early

All agree that while website owners aren’t totally vulnerable without a formal trademark filing, it offers the best protection when protecting or defending your name.

“Registration also means that one can go to a federal district court, instead of a State court where the plaintiff does business,” Marcus explains. “Normally a state court has no power over someone in another state, which may or may not reach the defendant; a federal district court has power over anyone in the US.”

Thecoveted.com is registered in Canada, but Siminski says that United States trademark registration may still offer some protection. “If the majority of the people accessing the site are based in the U.S., it’s likely that someone could enforce rights against them even though they’re based in Canada.”

The first step to protecting the name you’ve built online, or are planning to build, is to be vocal about it. Siminski suggests even a simple statement on the homepage of  your website can “put the public on notice that you’re claiming rights to the trademark.” The domain name alone may not be enough, but merely making that statement strengthens a website owner’s position. “It’s not as good as a federal registration,” he says, “but better than not outwardly claiming trademark rights.”

Federal trademark registration does require an attorney and costs between $1000 and $1200, inclusive of attorney fees, for registrations which are accepted. Staking your claim to a trademark costs nothing.

We’d like to make you aware that we claim Signature9 as a trademark.

Representatives of TheCoveted.com were contacted for comment, but we have not received a response.

Just a few days ago, Facebook filed suit against Illinois-based Teachbook for “rid[ing] on the coattails of the fame and enormous goodwill of the Facebook trademark.” {CNN}

Teachbook, a social network for educators which has yet to launch, has refused to back down on their own trademark filing to protect the name. TripTrace, formerly known as Placebook, however, found themselves on the receiving end of a similar suit and decided to just undergo a name change.

CNN reports:

A rep for Facebook said the company doesn’t claim to own rights to the word “book,” as it has no complaint with titles like Kelley Blue Book.

“However, there is already a well-known online service with ‘book’ in the brand name that helps people connect and share,” the Facebook rep said in an email.

Is "f" next on the list of trademarked Facebook terms?

While it’s not explicitly part of trademark law, trademark holders are often advised to “aggressively defend” their trademarks for the best hope of protecting them against infringement.

But it seems the Facebook legal department may be going a bit too far. In addition to fighting social startups that try to use the word “book” within their domains, they’re now trying to secure the trademark rights to “face” and “like.” {TechCrunch}

While the Placebook case is somewhat understandable given the similar sound of the two names, the pursuit of Teachbook makes Facebook seem like a bit of a trademark bully. So the pursuit of trademarks over 2 words as generic and common as face and like may not seem like a big deal, but could mean bad news for smaller startups or even for similar behemoths.

You may recall a little product that Apple is pushing called FaceTime. If Facebook were to secure the rights to the word “face,” particularly for social applications, Apple could be the likely target of a suit. While their targets have so far been small startups, if we follow Facebook’s legal logic of their brand already being a well-known service with “face” in the brand name that helps people connect and share, they almost have to go after Apple. We’re not against brand protection, but that seems like a much more fairly matched fight than the ones Facebook’s already picked. Still, only time will tell if other companies will be able to save face.