NEW YORK, United States — It was the must-have bag of last summer.
All through the warm months of 2017, my Instagram feed was flooded with photos of people — friends, celebrities, celebrities I think of as friends — carrying Cult Gaia’s Ark bag. It is delicate and crescent shaped, constructed from bamboo, and reminiscent somehow of both an antique bird cage and a picnic basket.
It was also initially less than $100, which is fairly affordable; even now, when the smallest version in the natural colour sells for $128, it is still a steal in the fashion world. But the price didn’t disqualify it from mention in the high-end glossy magazines, including Vogue, Elle and Harper’s Bazaar. In October 2016, the bag had a waiting list 1,800 people long, according to Cult Gaia.
So it came as no surprise that knockoffs were right around the corner.
Red Dress Boutique and Perennial Chic have their own versions of the bamboo handbag, and Amazon sells versions as well, but it is Steve Madden’s nearly identical model that provoked a legal spat. In February, Cult Gaia threatened to sue Steve Madden for infringement, claiming that Steve Madden’s version — the BShipper, $68 — was a direct copy of the Ark.
In response, Steve Madden turned around and sued Cult Gaia, arguing that by attempting to gain exclusive rights to the bag’s design, Cult Gaia was treating the bag as an original. In fact, Steve Madden’s lawyers argued, the Ark bag “slavishly copies the traditional Japanese bamboo picnic bag design” of the 1940s.
The dispute between the two companies gets to the heart of complicated issues of appropriation and trademark in fashion. The world of clothing design is necessarily iterative: past styles frequently influence contemporary brands to produce vintage-inspired creations that can then become trends. But when any so-called look becomes exceedingly popular and simultaneously associated with one brand, the creator can file for a trademark.
That’s exactly what Cult Gaia tried to do. But the United States Patent and Trademark Office has refused to register the design, calling the Ark bag “an iteration or appropriation of a style of bag from the Japanese culture.” The design, the Trademark Office said, “is a classic shape and style of carrying bag for personal use.” (The company has additional time to present its case.)
The founder of Cult Gaia, Jasmin Larian, has said she was inspired by bamboo bags made in Japan. “I used to collect them,” she told Who What Wear Australia in 2016. But she still may have a case for a trademark.
Usually “trademarks consist of words or symbols that indicate source — in fashion, things like the designer’s name on the label, the Nike swoosh or Adidas’s three stripes,” said Susan Scafidi, the founder of the Fashion Law Institute at Fordham University, who was also the first to report on this lawsuit. Yet, the shape of an item can also serve as a trademark, she said, especially if shoppers associate it with a specific brand.
Ms. Larian is “trying to register the shape of the Ark bag as a trademark, arguing that, like the Hermès Birkin, US customers immediately associate that style with her and Cult Gaia,” Ms. Scafidi said.
In February, Cult Gaia’s lawyer at Mitchell Silberberg & Knupp sent a letter to Steve Madden threatening to “file a lawsuit seeking any and all available legal and equitable remedies, including injunctive relief, monetary damages, restitution, and attorneys’ fees,” if the company did not cease and desist advertising and selling its version of the Japanese basket bag, among other demands.
Steve Madden has been accused in the past of imitating designs by Valentino, Doc Martens, Allbirds, Aquazzura, Alexander McQueen and Balenciaga. But this time, Steve Madden responded by suing the company it may have copied. Forever 21, the fast-fashion behemoth, has tried a similar tack: last summer it filed a pre-emptive lawsuit against Gucci after being threatened with what it says was overaggressive trademark litigation by Gucci.
Ms. Larian was unavailable for comment on the lawsuit against her company, but Aaron M. Wais, a lawyer for Cult Gaia, told The New York Times, “We believe it is our duty to protect our hard-earned I.P. assets on behalf of our retail partners — and customers who shop our website directly.” A spokesperson for Steve Madden said the attempt by Cult Gaia to claim trademark rights in this case “unnecessarily limits the consumer’s right to make choices and stifles healthy competition.”
The fight isn’t over. Ms. Larian “could still bag a trademark on the Ark design and hit Steve Madden over the head with it, but she’ll have to get past the U.S.P.T.O. first,” Ms. Scafidi said, referring to the patent office.
Until then, consumers can buy any imitation they like.