Page B1 of today’s Wall Street Journal: long article on Hermes and its fight against the Jelly Kelly (background here). Good photographs illustrating side-by-side comparison of Hermes Birkin bag and features in rubber ‘knock-offs,’ such as belt clasps and grommets.

Interesting point: Hermes sells its Birkin bag only to those on a waiting list that is now closed.  I interpret this to mean that Hermes could not have lost any sales as a result of the Jelly Kelly. 

So if plaintiff can sell its good at full price and at full capacity despite defendant’s infringing copies, is there actionable damage?

If it infringed plaintiff’s mark, defendant’s profits are ‘ill-gotten gains’ subject to an accounting under either an unjust enrichment theory or a punitive theory.

However would a Judge Posner disciple argue that this is neither unjust nor something worthy of punishment.  Defendant was merely filling a previously un-met consumer need, and because plaintiff received its full price at full capacity, neither the consumer nor the plaintiff was damaged?  Or, in this case, was Hermes foreclosed from offering (or licensing) its own lower-priced bag as a result of defendant’s activities?  I suppose that Hermes can allege damage to the discounted future value of the Hermes brand (if the company was sold, it would possibly receive a lower price because of the threat of these jelly bags to future earnings).  

Your thoughts please but attention hard-core plaintiffs’ lawyers: don’t write in merely to yell at me – I’m just trying to start a conversation.

Another Judge Posner decision involving Ty, Inc., source of Beanie Babies.  Plaintiff sold a few thousand plush camels under the name NILES.  Defendant Ty then came out the next year with its plush camel named NILES and sold 2 million.  There is a very long discussion as to why NILES is not a descriptive term for a plush camel. 

Plaintiff alleged reverse confusion – instead of defendant attempting to pass off its product as that of plaintiff’s (defendant’s pickles in a barrel with plaintiff’s name), defendant attempts to pass off plaintiff’s product as it’s own (plaintiff’s pickles in a barrel with defendant’s name). 

The significance of this case is that Judge Posner points out that a common articulation of reverse confusion is really not reverse confusion.  When a large junior user adopts the mark of a small senior user, the senior user argues that it will be perceived as the copycat.  However, as Judge Posner notes, this is not confusion as to source.  It might be product disparagement.

Peaceable Planet v. Ty, 03-3452 (7th Cir. April 2, 2004)

This from the Drudge Report suggests that Google’s proposed Gmail email service will use software to scan contents of email messages so as to insert ads keyed to words contained in the email (more coverage here).  The example given by Drudge is that if the email indicates that the author writes that he/she has a stomach ache, Gmail might insert an ad for antacid (although that doesn’t make much sense as the recipient of the email ad isn’t sick).  I’m interested in learning how this really will work.

However, the future possibilities are interesting.  I write to my friend saying that I’m thinking of buying a Toyota and that triggers Honda sending me an ad (or I write to a friend complaining about my Toyota and Toyota sends me an ad).

Interesting: What is the nature of the relationship between Google and the email user?  How would the email user’s consent to this practice affect privacy and other issues (i.e. attorney/client privilege)?  I’m being facetious on that last bit as I don’t see this being a business app anytime soon.