Summit Entertainment, LLC, the studio to blame for our country’s current obsession with all things vampire, and the reason why “pale, unshowered and moody” is the look that all teenage boys seem to be sporting these days, is suing clothing manufacturer B.B. Dakota, Inc. for having had the good (or bad) luck of having one of its jackets chosen to adorn actress Kristen Stewart (a.k.a. Bella Swan) in the original Twilight film.
“What?” you might be asking yourself. “How can that be?”
Well, my dears, let me explain. Do the litigation thing long enough and you’ll find you can’t be surprised by much anymore.
Earlier this month, Summit filed a lawsuit against jacket maker B.B. Dakota and two retailers, claiming trademark infringement, trademark dilution, false designation of origin, copyright infringement and unfair competition. This suit was, actually, only the latest salvo in a broad-based war Summit seems to be waging over any expressive activity related to the Twilightfranchise. Reading the complaint, it seems the primary basis for Summit’s claims against B.B. Dakota is that the jacket maker used Summit’s “Bella” and “Twilight” trademarks on Dakota’s website while advertising and offering for sale a certain blue hooded jacket made by Dakota (the copyright claim is based on the use of a still from the film featuring Kristen Stewart in the jacket, which was apparently included on tags of the jacket when sold by one of the defendant retailers and on Dakota’s website; however, the image is no longer on Dakota’s website and Summit admits that it granted Dakota a license to use the image on its website for a period of time).
Dakota’s website identifies the jacket as “The Jacket Seen in Twilight” and features a picture of a model wearing the jacket next to a line of copy stating “Bella Swann [sic] wears this jacket in Twilight and scores the hottest vampire in high school, and so can you!” The references to “Twilight” and “Bella” are in normal type and the stylized “twilight” trademark identified in the complaint doesn’t appear anywhere on the site. There is, unfortunately, no explanation as to whether wearing the jacket renders one incapable of correctly spelling the name of the person/character around whom one is building one’s marketing strategy.
Had the jacket not actually been worn by Stewart’s Bella in the film, or had Dakota’s jacket merely been similar to, or a copy of, the actual jacket worn, this would seem like a pretty straightforward case. However, what’s interesting here is that the actual jacket made and distributed by Dakota, was the actual jacket worn — and featured quite prominently — in the film. In fact, as luck would have it, an unrelated feature in Entertainment Weekly has the scoop on how the jacket/film pairing came to be — you know, to the extent that delving into the innermost thought of teen chick flick costume designers constitutes a “scoop.” Apparently, the jacket was a last-minute decision orchestrated by costume designer Wendy Chuck when the director of photography didn’t like the brown jacket she had originally chosen for the sequence. Chuck “literally brought [the] blue one on set just before they rolled cameras” after a quick trip to a Nordstrom’s Rack.
So let’s summarize Summit’s strategy here in three easy steps. Step 1: use designer’s jacket in your wildly successful film, on a whim, without permission, and slap it on your human leading lady in the pivotal scene where she discovers that her crush’s paleness and moodiness is not because he’s a teenager living in overcast Washington, but because he’s a member of the bloodsucking undead, and actually, is a 500 year-old man who’s still stuck in freshman bio class (in case you haven’t seen the film, we never get an explanation for the whole not showering thing). Step 2: wait for designer to inevitably reference its serendipitous but totally factually accurate connection to said wildly successful film on its website (while waiting, entertain yourself by counting your hundreds of millions of dollars, or perhaps by taking a nice, refreshing dip in your swimming pool full of gold coins). Step 3: sue designer and retailers (possibly while laughing maniacally into the night).
What I find particularly interesting about all this is that Summit’s trademark and false designation of origin claims against Dakota are going to turn on whether Dakota’s references to the film and the Bella character, as they appear on its site, are likely to cause confusion amongst consumers as to source of the jacket, or the relationship between the jacket and the film. But Dakota’s website merely references true, factual statements about the relationship between its jacket and Summit’s movie. The jacket is “The Jacket Seen in Twilight” and “Bella Swann (sic) [does] wear this jacket in Twilight and scores the hottest vampire in high school…” (Okay, so a small minority might argue that Kellan Lutz is technically the hotter vampire, but Pattinson has the majority and this is really besides the point…perhaps I’ve said too much). How can Summit argue that consumers are likely to be confused as to the source of the jacket? The jacket was actually in the film. Dakota’s reference to that fact isn’t confusing — if anything, its clarification.
Summit is going to have to convince jurors (or, more likely, a mediator) that Dakota’s references to the film are likely to confuse consumers into believing that Summit somehow endorses the jacket. But doesn’t the fact that Summit’s agent chose to use the jacket in the film, on its lead actress, in a pivotal scene, show, at least implicitly, that Summit does approve of, or endorse the jacket in some way? Although predicting the outcome of any lawsuit is a fool’s game, Dakota seems to have a pretty compelling “fair use” defense lined up — which is, let’s be honest, good news for anyone who isn’t a fan of a shakedown lawsuits, unabashed greed, and general humbuggery.
At least we probably don’t have to worry about Summit getting tangled in more fashion-related litigation over the first Twilight sequel, New Moon, or the new Eclipse movie, in which shirts have apparently been rendered totally obsolete anyhow.