Issue #024: Can you "own" a "vibe?"
PLUS news summaries re: Fashion brand quality control, TikTok ban, Selling The City, Poppi flop, Honey scam & treasure hunts.
EDITOR’S NOTE <3
It’s the unofficial start to the New Year, as the first Monday “back from winter break.” I started the morning with a 7am “pilates” class to make the most of the momentum, but unfortunately the class was not worth it (the man literally had us doing kicks in the air for half the class & holding static body-weight squats for 8 rounds of 30 seconds… I did not need to leave my house for that). Anyway, it still felt good to “get at it,” but don’t feel guilty if you didn’t.
PS If you are new, you can learn more about my business story by clicking here.
👀 WHAT YOU CAN EXPECT FROM THIS WEEKLY NEWSLETTER »
Extra, extra, read all about it! The ScrollSavvy Newsletter features the latest in business, law & the creator economy… pulling back the curtains showing BTS of my business… sharing savvy tips to help you not get screwed… & creating community thru common personal interests.
🎧 PLAYLIST THIS WEEK »
New playlist coming next week!
💭 MOOD THIS WEEK »
I’m on a reading streak
Looking for old magazines & conversational coffee table books
I need new glasses
Claiming abundance ~~ ** ~~ $$ ** ~~ <3
HEADLINES »
Just the tip… (of the iceberg, get your head out of the gutter)
💸 IN BUSINESS & PARTNERSHIPS »
PayPal called out for its involvement in the Honey scam (Law.Com)
I guess the allegations in last week’s issue re: coupon-app Honey are being taken seriously. Creators (including LegalEagle) are suing Honey. PayPal (the owner of Honey) is accused of allegedly siphoning affiliate commissions by claiming there are no other coupons available (& directing users to the Honey coupon).
I’m giving away million-dollar business ideas for free (TikTok)
For some reason, some men in my comments are triggered. One of my ideas was a laptop case with a portable charger built in, & it’s as if I said I can take one drop of blood & perform 100s of tests (cough Theranos cough). As far as the notion that “ideas are worth nothing,” tell that to creative directors, business consultants, & the many other industries who pay for creative advice without execution (plus, that’s why I’m making $0 from the idea floating from my brain to my mouth onto TikTok, & why I’m offering it for free & not to a client with an NDA).
Kim Kardashian leaves private equity firm she co-founded, Skky Partners (Axios)
Gossip outlet, The Sun, says it’s bc “[s]he did not bring in the money and investors that the firm initially thought she was capable of. In that capacity, she did underperform, or her value was overestimated.” (Id.)
Apple launching smart ring to compete with Oura & Ultrahuman (TikTok)
This has been an ongoing rumor since last year, but * apparently * the design has been leaked (unsubstantiated).
Poppi changed its drink formula & customers are not happy (TikTok)
MAC cosmetics teases their new nude lip (People Brands & Things)
“Leaked nudes” - so cleveraGate) announced they were going out of business on Christmas Eve.
📜 IN LAW & POLITICS »
Congestion pricing takes effect in NYC (NY Times)
IMO, congestion is not only caused by volume of vehicles, but also by double-parking… & did you know that many big companies have exemptions for their trucks, causing them to idle endlessly, cause traffic, & dangerously impair vision for street safety? Yea, you probably didn’t know, because companies (like CocaCola) have lobbied the NYC gov to create a “stipulated fine” of $0 for commercial vehicles that is not widely talked about (my BFF from law school & former lobbying firm has been adamantly fighting against this for years). Go check the list of stipulated fees I linked here - you’ll see that double parking (a prevalent issue in NYC) is the only thing listed with $0 in fines.
Speaking of evil lobbying… (TikTok)
Nestle allegedly lobbies to block rights to paid parental leave in the US. Or at least that’s what this 2020 investigative report concludes. Why? BC they are on of the leading breastmilk sellers in the world. Not a good look for Alex Cooper’s “girl-power” beverage company, Unwell (owned by Nestle).
The “beige influencer aesthetic” lawsuit gets more attention (PBS)
Remember the Amazon influencer lawsuit we talked about last issue? It’s getting more momentum in the press, & I’m eager for the court to update us on whether or not you can truly own a “vibe.”
US Treasury Department hacked by China (BBC)
Apparently it took them 3 DAYS to realize they’ve been hacked.
TikTok Ban Update (NBC)
Remember last week when Donald Trump wrote a brief to the Supreme Court backing TikTok? Well, the US Dept. of Justice just wrote a counter to that brief, urging the Supreme Court to ignore DJ Trump & to push forward with the ban. TikTok will duke it out in oral arguments (the most exciting part of a case) this week (January 10), so we will sooooonn have an answer. Fingers crossed TikTok stays with us, bc I have so many recipes & life hacks bookmarked.
🤳🏽 IN SOCIAL MEDIA & THE CREATOR ECONOMY »
Fashion brands called out for misleading customers about garment quality (TikTok)
Is anyone else on “fabric make-up” TikTok? One my favorites has been @plzdontbuythat, a garment designer who reviews popular brands to see if the quality is actually worth the price on the tag. Spoiler alert: a lot of clothes are made from crude oil. If you want to be de-influenced, get on this algorithm. (Influencers show their true colors when they respond to these types of videos). PajamaGate 2.0?
Google VEO 2 creates perfect AI influencer videos (TikTok)
Yikes. You can replace influencers for brand videos, but you can’t replace community & channels of distribution…
Selling The City cast member “breaks the 4th wall” during season finale (ET)
Spoiler!!!! Don’t click the article if you want to watch.
Finally some positive news for Set Active! (TikTok)
Ppl were celebrating one of their recent emails, playing on the concept that their copywriter was OOO.
Good News - California couple found literal treasure in their backyard (TikTok)
I CLAIM this energy in 2025 ~~~~
FEATURE »
📸 Can you own a vibe?
Where interior design inspiration meets IP law
👀 INTRO »
Last issue, I briefed you on the recent headlines re: “aesthetic drama.” Between the Amazon influencer case & the PilatesGate, there’s a valid question on everyone’s mind: can you own an aesthetic?
👀 BACKGROUND »
Let me fill you in on what we covered last week (here’s my first of several TikTok videos on the topic, if that’s more your style):
Nashville-based Forza Pilates built a brand reputation for its unique vibe (as far as modern pilates studios are concerned). Recently, a studio opened in Washington with a similar vibe… & similar name. Enter: Le Force Pilates. Allegedly, people asked if the 2 studios were affiliated (which is a tell-tale sign of trademark infringement).
A few things to note: 1) The owner of Forza Pilates made a TikTok to show some of the similarities; 2) allegedly, the owner of Le Force created a Pinterest board of Forza Pilates’ assets & showed it to their brand designer for “inspiration;” 3) the words “forza” and “le force” are considered the same word for purposes of trademark infringement (force / strength), regardless of language; 4) while you can’t do much about someone stealing your studio design*, you can enforce your branding (logo & name, which Forza filed trademarks for).
You can’t own an aesthetic (yet?) - TBD, depending on the outcome of the “sad beige” Amazon Influencer lawsuit.
👀 WHAT CAN YOU OWN? »
You might’ve heard the term “intellectual property” thrown around as if any kind of idea is property, but there’s a limit. US intellectual property laws come in 3 main forms:
Trademarks (things like your logo, brand name, product name, catchphrase)
Copyrights (creative works in a fixed tangible form, like books, written copy, photographs, videos, content pieces, original artwork (like sculptures), patterns, software / web design, & architectural drawings / plans)
Patents (novel furniture design, like the Core Chair, inventions, physical product design if new & unique)
There’s also a few other categories:
Trade Dress (like the overall size, shape, appearance of the Hermes Birkin bag, as opposed to the Wal-Mart dupe)
Trade Secrets (like the “secret sauce” in Big Macs or the “secret formula” of Coca-Cola, but more commonly, things like client lists, pricing strategies etc.)
So where does that leave owning an overall “vibe” or “aesthetic?” Like, when you knowwww someone copied you, but you can’t quite point your finger on what exactly is identical?
💭 CASE STUDY #1 - AMAZON INFLUENCERS »
In the Amazon influencers case, one influencer (let’s call her ”P” for “plaintiff”) is claiming that another (”D” for “defendant”) totally stole her aesthetic. They both create TikToks & post photos on Instagram in similar outfits, wearing similar (& sometimes the same) items from Amazon, posting similar products from similar angels. Everything they post is “aesthetic,” that is, cute, neutral, tan & beige.
P is suing D for copyright infringement under DMCA (Digital Millennium Copyright Act) laws. The issue is there’s not one or two posts that are similar, but a pattern of posts (including individual frames in videos). P also accuses D of “misappropriating” (AKA stealing) her overall (personal) image & likeness. This takes it from a typical copyright claim to an escalated battle over “overall vibes.” The problem is that soooo many other influencers also have similar videos, shotlists, Amazon lists, & vibe. It’s essentially diluted, because it belongs to so many people that it belongs to no one.
The court hasn’t ruled on this novel case yet, but it’s important to note that the crux of the issue is whether specific videos, posts, etc. were copied in a way that is “substantially similar.” That is the standard the court will use when deciding whether D infringed on P’s copyright.
The fact that the side-by-side comparisons in the lawsuit are so similar makes me feel that P will prevail. However, I’m not sure she should - the court will look at D’s content versus P’s content & almost certainly see a “substantial similarity”, but it’s yet to be seen if D will introduce evidence that P’s content is kinda “basic” (in a way that all Amazon influencers with the “beige aesthetic” are “basic” Target-loving, Uggs-wearing, pumpkin spice-drinking girls, if ya know what I mean? No hate, I’m basic too). Do “basic,” “overdone” aesthetics deserve IP protection, to the point you can sue someone for lost profits? I’m not sure.
💭 CASE STUDY #2 - PILATES STUDIOS »
In the Forza pilates case, the issue is less about the “aesthetic” & more about the logo, name, & studio design.
Forza has filed trademark applications with the USPTO for its name, logo & a catchphrase (”Thanks, it’s Pilates”). Le Force arguably has a similar name & a similar logo.
It also has similar decor (down to the light fixtures & everything). But is that overall “aesthetic” protectable? Is interior design protectable?
It depends. Here are some legally protectable pieces of the interior design process:
Custom Creations (like original furniture designs, bespoke light fixtures, built-ins, & other original decorative elements / artwork).
Documentation (like detailed drawings & plans, renderings, construction documents)
Brand Assets (business name and logo aka trademarks), photographs of spaces aka copyrights, design processes aka trade secrets)
Here are a list of things you "Can't Own:”
General room layouts
Color schemes
Material combinations
Design styles (e.g., "tennis club chic" or "wabi sabi")
Furniture sourcing from retail vendors
Standard design solutions
It’s also important to note that the IP belonging to the interior designer may not transfer to their client, unless the contract explicitly states so (ie. it’s a “work for hire” agreement, where copyright ownership transfers from the creative to the client).
The court will determine whether Le Force infringed on Forza’s trademark when it considers “the likelihood of consumer confusion” between the two brands. Arguably, the name, coupled with the logo & the design choices made by Le Force, do trigger “consumer confusion.” While the decor / interior design is not part of the alleged IP infringement, it could be used as evidence to support the overall “likelihood of consumer confusion” between the two brands.
👀 CONCLUSION »
While you can’t own an overall vibe, you can own the parts that make the sum. But remember, you & your brand are more than the sum of all your parts. They can steal your entire recipe, but it still won’t taste the same <3
GOSSIP COLUMN <3
… AKA personal updates. Sit down with your favorite morning cup cuz I’ve got some tea ☕️
I’m watching Netflix’s Selling Sunset spin-off, Selling The City, while I draft this. As a ~ NaTiVe NyEr ~ (something touted often by Eleonora during the show), I don’t feel like the cast entirely represents professional life in NYC. That said, it is a bit more relatable (& work-oriented) than Selling Sunset. If I was still working in NY… I would go for happy hour with Abi. I would attend a networking event hosted by Eleonora. I would go to Tracy Anderson with Taylor. I would probably work on a deal with Jade (as a former lobbyist for new developments). I would bump heads with Jordyn if we worked on the same project. And I would avoid Giselle lol bc I just can’t with the flakey vibe & attitude she caught with her boss / colleagues.
I got an Oura ring for Christmas from Skip, and I was annoyed at first that it wasn’t accurately tracking my steps. But it’s growing on me (now that I’ve started to swing my hand around wildly while I walk, instead of holding my coffee with that hand or putting that hand in my pocket). So far, I’ve hit my goals of 10k steps per day since the new year.
I’m going to host my first ScrollSavvy community event soon! I will start with virtual coworking events, where we meet up live via Google Meet, introduce ourselves / network briefly, & then quietly work together (with some chill background music). I’ll be using that time to work on the latest issue of ScrollSavvy. I’m thinking weekly on Thursdays or Fridays… what do you think? Vote in the poll below if you’re interested <3 It’s free!
OBITUARY »
We are no longer tolerating:
More bad news about horrible events. Btwn the planes, attacks, new viruses… 2025 is off to a rocky start. In all seriousness, I feel horrible & helpless when these things pop up on my feed (which is often, as a professional Scroll-er).
Pilates classes that are just bodyweight HIIT classes disguised as Pilates. Fitness instructors that are totally unaware that you can use weights or resistance (yes, even in Pilates classes… light weights make allllll the difference).
Talk about the TikTok ban. At this point, it’s out of our hands.
CLASSIFIEDS »
I’m looking to hire someone to help me with legal research. If you are a law student or recent law grad, please email nina@thecontractguru.com with your resume (& subject line “SCROLLSAVVY SECRET MESSAGE”).
PS… Got an opportunity you want to share? An event coming up? Looking to hire someone? Send a description & if it’s a fit for my audience, I will post it here in the classifieds section.
BRAIN FOREPLAY »
🍳 WEEKLY WORD SCRAMBLE »
DBIIULNG
TNEGA
NLSLGIE
WWNNOODT
Last week’s answers: Whiteboard, Organize, Image, Imagine… Theme = Vision Board
THAT’S IT FOR THIS WEEK <3 THANK YOU FOR READING!
See you next week!
xx Nina
Yikes! Sorry about the broken link in the first headline. I write this on Notion & copy / paste, it got muddled in the process 😓😌😭