On March 12, 2012, BCBG Max Azria Group, Inc. (BCBG) sued Stretta Moda, LLC (Stretta) for infringement, unfair competition, and dilution of its Herve Leger bandage dress design. Although Stretta filed an answer denying the allegations, the parties entered into a Stipulated Consent Judgment on April 23, 2013 enjoining Stretta from selling any garments that imitated BCBG’s trade dress and awarding $150,000 in attorneys’ fees and costs.

Since at least the early 1990s, BCBG has sold a high fashion garment known as the Herve Leger “bandage dress” (Bandage Dress). As set forth in the complaint, BCBG’s rights in the design of the Bandage Dress consist of the following elements “(a) bands of fabric, (b) arranged in horizontal and/or diagonal patterns, (c) to form the tight-fitting dress with an overall look that accentuates the female form.” BCBG has added embellishments, such as sequins, to versions of the Bandage Dress, but these elements have been consistently used on each collection over the seasons.

According to the complaint, Stretta began to sell a cheaper and lower quality imitation of the Bandage Dress and informed the public and fashion industry that its dresses were made in the same factory as BCBG’s dress. Based on these activities, BCBG asserted that Stretta’s actions constituted trade dress infringement, dilution, and unfair competition. In order to establish rights in its design, BCBG would have been required to prove that the Bandage Dress was (1) non-functional and (2) had acquired distinctiveness through substantial commercial use. Stretta filed an answer denying the claims and asserting that the Bandage Dress was functional, had not acquired distinctiveness, and was not capable serving as a trademark. In other words, Stretta argued that the elements of the Bandage Dress merely served a functional purpose and that consumers would not recognize these elements as an indication of source. Before a court could decide the matter, the parties entered into a Stipulated Consent Judgment enjoining Stretta and awarding damages to BCBG.

This case highlights the difficulties associated with protecting fashion designs and the tendency of companies to imitate trends and successful products. Although designers can obtain limited protection for portions of their designs through trademark law, they must overcome the hurdles of functionality and acquired distinctiveness in order to do so. This case also emphasizes how consent judgments can be a useful litigation and enforcement tool. While disputes are often resolved through confidential settlement agreements, a consent judgment can provide public notice of a company’s claims and intent to actively enforce its mark, thereby acting as a deterrent. Moreover, resolution of an alleged breach of the terms of a consent judgment would be subject to court review without the need for litigation.