Twilight Creators Take a Bite of Forbidden Fruit

With all of the merch generated due to the wild success of the Twilight book and movie, it was only expected that someone would get greedy. Or sloppy. Or both. In this case, the trouble started with a perfume bottle.

In fall of 2008, Summit Entertainment, LLC released a brief-lived Twilight perfume called Forbidden Fruit, which was distributed through mall stores Hot Topic and Borders. Within a month, all of the bottles of Forbidden Fruit were yanked from the shelves of retailers pending further investigation. Seems like the design of the Forbidden Fruit bottle eerily resembled another popular fragrance, Nina, made by Parfums Ricci to the point where the two bottles were almost indistinguishable. And Ricci's legal staff were all over this new development like white on rice.

There's a long legal term for this, and I think it's ... oh, "Woo-hoo! Got it in the bag!"

In intellectual property law, there is something known as "trade dress," which falls under the umbrella of trademark infringement. That is to say, the overall appearance of a product or business that can be registered with the United States Patent and Trademark Office. If another party takes the creative "packaging" used by an established trademark holder, this can be actionable. Say, for example, you're craving a Big Mac from McDonalds. You're tooling around in your car and see a fast-food with a drive-through that resembles McDonald's. Same golden arches. Same type of food on the menu board. Only as you accept the package containing your, uh, "Even Bigger Mac," you notice that the name on the package is McRonald's, not McDonald's! Hotcha! What's in that bag, anyway?

Similarly, the Forbidden Fruit bottle is almost an exact replica of the Nina bottle, with only extremely minute variations. The box containing it is different, reflecting the Twilight branding. There's a faint inscription on the outside of the bottle itself. But both are deep red, squatty bottles in the shape of an apple with very distinctive silver leaf trim that look like they could have been designed by ... why, Lalique! Yup, Lalique. That's who has designed all of Nina Ricci's fragrance bottles as long as she's been churning out scent. Each Ricci creation is very distinctive and detailed. It's impossible for me to believe that whoever green-lighted the Forbidden Fruit bottle was in the unawares zone.

On April 2, 2009, Parfums Ricci formally filed suit in a Newark Federal Court. Ricci is represented by Brooks Bruneau, of the the prestigious law firm Porzio, Bromberg & Newman, P.C.. Bruneau's statement, according to Intellectual Property Today: "Copying the NINA apple shaped perfume bottle to sell Twilight perfume took something of great value from Nina Ricci, violating Nina Ricci's trade dress rights, and this could not be ignored."

I don't know about you, but I would let someone rip my thumbnail out without any anesthesia to be a fly on the wall at this hearing, which will take place in federal court, as do all cases involving intellectual property rights. And it will also be interesting to see if Lalique joins Ricci as a party to the suit. On the defendant's side, Hot Topic and Borders have been already been enjoined, poor things. Aw, c'mon, Nina. What do the people at mall shops know about the world of haute fragrance such as that released by Parfums Ricci? Can you imagine the manager at your local Hot Topic opening up a shipment of Forbidden Fruit, surveying one of the bottles critically, and thinking, "Gee, isn't this a Lalique design --?"

In case any of you have kids hankering after the original Forbidden Fruit and think that perhaps the surplus is going to show up at a fragrance outlet, hope no more: In situations such as these, injunctions are slapped. The Trademark Act of 1946 and the Trademark Amendments Act of 1999 both provide that in cases of a dilution of a famous mark, the offending product is impounded and destroyed. Amazingly enough, you can still find some of this ridiculous stuff on Ebay for an equally ridiculous price. However, if I were a seller who rushed to Hot Topic to buy up a lot of bottles of Forbidden Fruit with the sole intention of putting them up on Ebay, I'd be afraid to poke those puppies with a barge pole; resellers of items that violate another party's trade dress -- particularly in this case when the outcome seems so obvious -- can get more than just a bad case of carpal tunnel. More like ominous-looking mail from a New York law firm.

One of the hallmark cases of trademark dilution vis-a-vis obvious purloining of an established company's trade dress (which could be applied in the Ricci suit by the court) is Victor's Little Secret v. Victoria's Secret Catalogue, Et. Al. Betcha I don't even have to tell you what this case was about, but in case you don't, I will tell you. Victor's Little Secret, a mail-order lingerie company, published and mass mailed catalogues almost identical to those distributed by Victoria's Secret with respect to layout and design. Many consumers who ordered from Victor's Little Secret did initially think that in fact they were ordering from Victoria's Secret catalogue. During the trademark infringement suit, the court considered the following issues:

1) If Victoria's Secret, who sought an injunction against Victor's Little Secret to cease publishing and distributing its catalogue, had to establish is there was present trademark dilution and if there was likelihood that the dilution of the mark would continue.

(Read: Please. Is it not obvious to anyone with two brain cells firing that the Forbidden Fruit bottle and Nina bottle are almost identical?)

2) Whether a showing that consumers mentally associate Victor's Little Secret with Victoria's Secret because of their similarity is sufficient to bring a suit against Victor's?

(Read: Do both fragrance bottles look so similar that an average crazed Edward Cullen-obsessed fangirl will squeeeee! when she sees a bottle of Nina and say, "Ooo! Look! The Twilight bottle!" and in the case of Ricci, is this necessarily a bad thing?)

3) Whether a showing that Victor's Little Secret has caused economic harm to Victoria's Secret is necessary in order for Victoria's Secret to bring suit.

(Read: Would it really matter if sales of Twilight's Forbidden Fruit caused Ricci's Nina to sell less, hypothetically? Gosh, isn't it kind of the principle of the thing?)

I know the answers to these questions having read the case, but I'm going to keep watching the Summit-Ricci debacle as it progresses ...

If the Forbidden Fruit bottle was copied, it makes one wonder about the Forbidden Fruit fragrance itself. Was that replicated from an existing scent as well? Forbidden Fruit wasn't sold long enough for me to know anyone who actually purchased it, but the few online reviews I've read indicate that the freesia-based fragrance is, in a word: Insipid.

But don't take my word for any of this. In case you have doubts, a side-by-side comparison of the two bottles, one made by Summit Entertainment and the other by Parfums Ricci, is quite helpful.

Any questions?