B.A.F.F.L.E.D. Fashion Law
Business and Legal Tips for the Emerging Designer--
Just this past Friday, I got the magnificent opportunity to sit on a fashion law panel, hosted by the Fashion Law Society at John Marshall Law School in Chicago. It was a great event, and now the 3rd time I've presented at one of their Symposiums. Always a great time.
As I, and the 3 other attorneys on the panel took questions, we were asked everything from the best way to set up a fashion business, to the means for protecting a brand once it's up and running. We gave many tips and cautions, but it reminded me of the information right here to share with designers and brand managers for protecting what's rightfully yours.
Here are some of the tips we've shared in the past. Take a look, and let us know what else you'd like to see.
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B.A.F.F.L.E.D. Fashion Law
Burberry Trailblazes "See Now, Buy Now"; Skirts Fakes
With smartphones being more commonplace than almost
any other item in our daily lives, they've had both positive and harmful affects on the fashion industry. The "Runway to Rack" model has created its own lane in fashion, and unfortunately hurt designers. This is the business model allowing a photo of a runway design to immediately hit a manufacturing table, and in as little as 2 weeks--a fast fashion rack. Luxury, and even startup brands have struggled with this quite a bit in the last decade or so. Technology, talent, and sales all cut both ways.
any other item in our daily lives, they've had both positive and harmful affects on the fashion industry. The "Runway to Rack" model has created its own lane in fashion, and unfortunately hurt designers. This is the business model allowing a photo of a runway design to immediately hit a manufacturing table, and in as little as 2 weeks--a fast fashion rack. Luxury, and even startup brands have struggled with this quite a bit in the last decade or so. Technology, talent, and sales all cut both ways.
"See Now, Buy Now"
Burberry is changing the tide. Starting in September, the iconic British luxury brand will start hosting only 2 runway shows a year, and make the looks seen on the runway immediately available for purchase. Versus Versace has endeavored on something similar. This will certainly help in circumventing how the "Runway to Rack" method has cramped high fashion's brand protection.
More Changes Coming?
This new approach will continue Burberry's show of leadership in digital marketing, as well as complement the CFDA's review of the traditional fashion calendar. Social media is clearly showing it is here to stay. Burberry is showing its longevity is, too.
Thanks to Fashionista.com for this tip!
B.A.F.F.L.E.D. Fashion Law
Why You Should Care about Fashion Law
By: Dana Martin
Often perceived as an elitist and
superficial industry, the lawyers who come to the defense of fashion get a bad
rap. After all, why should anyone care about protecting huge fashion and luxury
goods conglomerates like Hermès from online retailers selling fake Birkin bags? The answer is simple: the law of fashion doesn’t only exist to
protect the designers, it’s there to protect you, the consumer.
Fashion law is a broad category that
covers everything from employment issues to mergers and acquisitions. However, most of the rhetoric surrounding fashion
law focuses on protecting a brand’s trademark. So what does that mean, and why
is it important to you? According to the United States Patent and Trademark Office, a trademark is “any word, name, symbol, device, or
any combination, used or intended to be used to identify and distinguish the
goods/services of one seller or provider from those of others, and to indicate
the source of the goods/services.” So, a trademark can be anything from a logo
like the Nike “swoosh” to the red sole on
the heel of a Louboutin, so long as its purpose is to provide a signal to the
consumer about what brand is responsible for the product they are buying.
This is important because, as consumers,
we base a lot of our decision on which products to buy in which brand created
them. The brand of a product carries with it expectations of a certain level of
quality according to our past experience. Think back to the last time you were
at the grocery store. Did you decide to buy name brand paper towels or the
generic brand? You can’t test each package of paper towels in the store, so how
would you know one might be superior to another? Maybe you have tried both
kinds and have concluded that the name brand is a higher quality product. The
next time you need paper towels you are more likely to choose that brand
because your past experience has led you to expect a certain level of quality
from that product. This is called brand loyalty.
Brand loyalty exists in the fashion
industry all the way from runway couture to your everyday attire. Think about
your favorite pair of jeans that fit like a glove. When it’s time for a new
pair, that’s probably the brand you seek out at the department store. You
expect them to fit, feel, and last as long as your old ones. In an industry
like fashion where your options are seemingly limitless, when we find a brand
that seems to fit our shape, style, and budget, we reward that company with our
loyalty. Ideally, if enough people buy the clothes, the brand recognizes the
demand and keeps producing outfits that you love.
Everyone wins!
Now imagine that when you get to the grocery
store, both the name brand and the generic paper towels have almost
indistinguishable packaging. If you accidentally choose the generic brand, you
may be frustrated with the inferior quality of product that you received.
Believing you purchased the name brand, you might decide that their product is
no longer living up to your expectations, and decide that the next time you
need paper towels you will choose a different brand altogether. In this
scenario, the generic brand took advantage of the name brand’s good reputation
by tricking the consumer into purchasing it, and in the process destroyed that
consumer’s brand loyalty. And now you, as the consumer, wasted your money on a
product that you did not intend to buy.
This same concept can be true beyond household
cleaning products and especially in the fashion industry. Consumers want to be
able to make decisions about a brand based on their experiences with it, but if
they are confused about which brand they are purchasing that becomes
impossible. If a company is
selling handbags by tricking consumers into thinking they are buying a designer
bag rather than by creating their own brand loyalty, the biggest loss falls on
the consumer, who chose to spend his or her money expecting a product of a
certain quality and received a knockoff instead. Ultimately, protecting the
trademark of a brand protects that company from others trying to profit off
their good reputation, but it also protects your ability as the consumer to
make an informed purchase.
On the surface, fashion law might seem
like nothing more than a hobby for attorneys who keep the latest issue of Vogue
hidden beneath the Wall Street Journal on their desks. After a closer look,
however, it is clear that by protecting trademarks we encourage companies to
take responsibility for their products. This means a company must learn to
distinguish itself by producing higher quality goods rather than leaning on a
competitor’s hard earned reputation. This means that you, as the consumer, get to reap the
benefits of companies trying to win your loyalty by producing better quality
products.
Happy shopping!
B.A.F.F.L.E.D. Fashion Law
The Battle at Red Sole: Did The Court Get It Right?
We don't think so. News hit earlier today about the drama over red-soles. If you've been paying any attention to the trademark case between Christian Louboutin and Yves Saint Laurent, you know they are battling over the use of the red sole trademark.
Louboutin has a trademark protecting their use of a "bright red outsole" for the footwear they produce. The Southern District of NY judge denied their motion to keep YSL from using red soles on their shoes while the case pends: “Because in the fashion industry colour serves ornamental and aesthetic functions vital to robust competition, the court finds that Louboutin is unlikely to be able to prove that its red outsole brand is entitled to trademark protection, even if it has gained enough public recognition in the market to have acquired secondary meaning,” said the judge in his ruling. YSL even alleges Louboutin does not deserve the trademark at all because of the generic nature of red shades to possibly be used in shoe soles.
We have some trouble with this. As mentioned here before, trademarks are tested based on: Strength, Similarity, and Proximity in the market. In this case, we see YSL failing to prove Louboutin shouldn't have their trademark, and then so, the injunction. Here's the breakdown:
Strength: Louboutin has an extremely strong mark in their "red-bottoms", simply because everyone knows them by the moniker, and expects shoes with red soles to be made by Christian Louboutin. It's known everywhere, in all media outlets-- fashion and non-fashion. The company has made their mark in the shoe and fashion industry, simply by making sure every shoe they produce has a red outsole. All YSL shoes do not.
Similarity: Sure the shades of red are vast and vary, but any non-"Louboutin Red" should be immediately suspected as a fake. You know it when you see it. The sole YSL claims to have been using since the 70s is, in fact, similar to the Louboutin sole. However, using the colored sole on a shoe here and there over the years leaves way for a gap in the market, which Louboutin has filled.
Proximity in the marketplace: Louboutin wins here, too. YSL shoes and Louboutin shoes are clearly in the same market and can lead to confusion in the exact same customer base. EVERY Louboutin shoe has a red sole, no matter the style, upper color, or heel height; and the brand is widely known for it. Finding red soles on other shoes, especially in the luxury market will confuse consumers, and force the ever-vigilant fashionista to watch their purchases and selections. No shot to YSL; it's a great brand. You just need your own niche in the market.
So, after this breakdown of trademark testing, we are extremely anxious to see how this case pans out. We believe Louboutin has met all the criteria it needs to keep its red sole protected, and are actually quite shocked this case is even in court.
Share your thoughts on this one with us. We'll be watching it every red step.
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