Vogue has landed a win in the first round of a lawsuit against Drake and 21 Savage over their unauthorized use of the magazine’s trademark to promote their newly-released album. On the heels of Advance Publications d/b/a Condé Nastfiling a trademark infringement suit against Drake and 21 Savage on Monday, Judge Jed Rakoff of the U.S. District Court for the Southern District of New York ordered that the two musicians immediately refrain from using Vogue’s trademark-protected name to promote their album, Her Loss, and continue to hold off from doing so until at least November 22 when counsel for the parties are slated to appear in court to show cause for a longer-term preliminary injunction.
In the brief order issued on Wednesday, Judge Rakoff found that Condé Nast has a likelihood of success on its trademark claims in light of Drake and 21 Savage’s creation and dissemination of “images of a counterfeit cover of Vogue magazine featuring the Vogue mark and an image of [themselves], as well as copies of a counterfeit magazine purporting to be a genuine issue of Vogue magazine.” Specifically, the court stated that, “among other things, the defendants’ actions are confusing consumers about the origin, sponsorship, or approval of the counterfeit cover and counterfeit magazine, misleading consumers to believe that these are genuine and authentic materials associated with Condé Nast and Vogue magazine.”
Condé Nast pointed to media articles linking the musicians’ faux magazine cover to Vogue, and social media user comments that it claims establish that consumers are confused about the nature of the allegedly infringing promo campaign and that reflect “the widespread belief that the counterfeit issue and counterfeit cover disseminated by the defendants were real.”
“A temporary restraining order is necessary … to protect the public from confusion, deception, and mistake, and to protect Condé Nast from immediate irreparable injury,” according to the court, which ordered that Drake and 21 Savage be barred from disseminating more of the counterfeit materials.
Additionally, the court is requiring Drake and 21 Savage to “take down and remove all existing internet and social media posts on all websites and social media accounts … that contain or reflect (i) any depictions of or references to the Counterfeit Magazine and/or the Counterfeit Cover, (ii) any use of the [Vogue] trademarks for commercial purposes, including … to advertise, market, or promote the album Her Loss, (iii) any use of [Anna] Wintour’s name, image or likeness for commercial purposes, and/or (iv) any false or misleading statements or misrepresentations concerning the Counterfeit Magazine, the Counterfeit Cover and/or Drake and 21 Savage’s participation or appearance in Vogue magazine.”
Still yet, the musicians are directed to “take down and remove from public display and circulation all existing physical print posters, in all locations, depicting the Counterfeit Cover” – and remove from circulation “all existing physical copies of the Counterfeit Magazine” – that were displayed or circulated by them or at their direction.
In its complaint on Monday, Condé Nast claims that it attempted “resolve this matter amicably” with Drake and 21 Savage “as early as October 31” in order to “curtail further public confusion” before the release of their album on November 4, “Nothing was done, with the defendants continuing to benefit from the infringing social media posts that would take seconds to take down.” The defendants’ “flippant disregard for Condé Nast’s rights have left it with no choice but to commence this action,” Condé contends, setting out federal and state law claims of trademark infringement/ counterfeiting, false designation of origin, and false advertising, as well as violations of New York General Business Law.
As of the time of publication, an Instagram post depicting the cover that previously appeared on Drake’s and 21 Savage’s respective Instagram accounts had been removed.
UPDATED (Nov. 17, 2022): In order “to avoid unnecessary cost and expense,” Drake and 21 Savage consented to a preliminary injunction “without conceding any liability with respect to the claims asserted by Condé Nast in this action, and without conceding any wrongdoing on their part.” Among other things, the injunction prohibits the musicians from “using displaying, disseminating, or distributing copies of the Cover and Magazine,” and from using the Vogue trademark or any confusingly similar marks in a commercial capacity.
The case is Advance Magazine Publishers v. Aubrey Drake Graham, et al., 1:22-cv-09517 (SDNY).
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