B.A.F.F.L.E.D. Fashion Law

Louboutin Adds Protection with Design Patents--

Fab shoemaker Christian Louboutin is always working to protect his brand.  His latest attempt has been obtaining a design patent for his spiked toe design.  He's already overcome the red sole battle, and is now continuing on in making sure there's no confusion as to what belongs to him and only him.

In addition to the spiked toe patent, CL has about 10 others.  His design patents include some of his lace-up boots and stuffed flats...surely more are to come.  Be careful doing your fall and winter shopping.  There's likely to be fakes out there.  Christian isn't the only one protecting his brand with every design protection option possible.  Jimmy Choo, YSL (a former Louboutin opponent in court), and Celine are just a few others also taking the protection to the next level.





With the counterfeit market grossing in the billions, no chances can be taken! 

For more on Intellectual Property Basics, click here.  And for a plethora of fashion law news and tips, click here! 

B.A.F.F.L.E.D. Fashion Law

Fast Fashion Has In-Fighting Over Copies--

Retailer H&M is suing its fellow fast fashion colleague, Forever 21 over copyright infringement.  H&M claims Forever 21 is selling a "Beach Please" bag, distinctly made for H&M, which was also registered for a copyright this past June.  The sales have continued even after cease and desist letters.

The story here seems to be a tad bit more about the irony of one fast fashion retailer suing another.  Both are widely known for taking designs straight from the runway to their quick manufacturers, then sales floor within weeks.  Forever 21 is said to have commissioned one of their loyal Chinese manufacturers for the H&M bag copy.  Both retailers have been sued over copies in the past--several times. 

It will be interesting to see how this one plays out.  Forever 21 is known for settling their infringement suits under the table.  Maybe this will be no different.   There are many arguments on both sides for protection of fashion designs expanding past prints and patterns.  Usually, the fight is between a luxury retailer and fast fashion giant...or even a boutique designer and established retailer.  How will 2 common infringers settle it? Nevertheless, there's something more to be hammered out here.  

For more on fashion law and infringement's damage, check out these posts!

B.A.F.F.L.E.D. Fashion Law

"I'll Just Get Another One"--Is Fast Fashion Killing Your Pocket?

When fashion first hit the map in the way we know it today--you know, when Charles Worth started putting labels with his name on them in the garments he made--consumers were not only buying custom pieces, but making investments.  We're a bit departed from that today.

Today, we quickly run to stores like Zara, H&M, or Forever 21 (me included, but I'm working on improving my ethical fashionista practices, ok?!).  While those stores give us the quick fix we need, often at their risk of an infringement lawsuit, they also present problems for our pocketbooks.  With a plethora of reasonably priced costume jewelry, t-shirts and dresses to last for a few wears, it's hard not to fall into the trap of spending.  Unfortunately, the trap is actually a spiral.

Going back to the days of Charles Worth, garments, and probably accessories, too were made to last.  Shoppers considered them investments.  They may have had to wear them a bit more often than we'd like to don outfits these days, but the pieces were solid.  They should have been, and should be.  They were quality.  Today, the garments at fast fashion outlets not only skirt the line of infringing on a designer's hard work (both established and new designers), but also put a hurting on the pocketbook--subconsciously.  

What consumers aren't considering when buying 5 dresses for $100 is, "they'll be back".  They'll be back soon.  Those $20 dresses will only last so long before falling victim to the washing machine or an easily snapped string one way or another.  At first blush, the response is--"I'll get another one."  Yep, and put more money into the hands of companies with questionable labor practices or terrible corporate cultures--the discriminatory and disrespectful kind.  (See Zara)  We'll continue to help the owners of Zara and H&M be 2 of the 10 richest people on the planet.  What's also happening is more money coming out of the consumer's pocket.  Every single time a purchase is made for a quick fix, it's less money to be spent on something made of better quality; something which will last longer and wear better.

Very few of us are completely innocent in feeding this bad habit.  Hopefully though, we'll all think twice when we turn down the $45 garment for 3-$50 ones.  Sometimes, that's a great deal.  Sometimes, it's a raw deal.

For more on ethical fashion, click here!

B.A.F.F.L.E.D. Fashion Law

Designers Focus In On Internet Vigilance--

Many established designers were hesitant to embrace the virtual world.  After all, their namesake founders began the collections in small shops or even rooms in their homes.  Soon enough, the internet world caught on, and the ease of shopping made for big benefits to seasoned luxury retailers.  

Then came the negatives.

Despite the plethora of advantages to e-commerce, burdens and disadvantages come along as well.  While luxury brands bring customer experience to the fingertips, so too, do counterfeiters and gray market producers.  As we've discussed here many times, gray market goods are those produced in legitimate luxury factory settings, but outside of legitimate production terms.  Counterfeiters usually take it a step further, producing their own look-alike items.  These goods are generally 2's and 3's in the marketplace.  Remember the Rating System?  

Why Does This Really Matter?  Everyone is Making Money?

With so many online squatters, luxury brands are forced to keep up constant vigilance over their brands online.  This becomes extremely difficult when the internet is flooded with search terms, improper image use, licensing breaches, and sites changing every single day. But, who cares?  The reputable brands get money from their base, and the counterfeit market gets money from their, wholly separate base, right?  Nope. 

We've discussed the great downside of counterfeits--the funding they provide for human trafficking and other horrible crimes.  There is a damage to the designer, too (not eclipsing the trafficking, of course--just separate).  

The crime to the brand--whether luxury founded in the 1800s or worked on tirelessly in a university studio this year-- hurts the bottom line.  It hurts more, the name; the reputation. The problem here is the compromise to one's rights, image to the public, and invitation for confusion when consumers are looking for the right item to suit them.  

Designers must be forever cautious of how they market their brand and where they allow it to be exploited. Just recently, Gucci owner Kering sued China's largest e-commerce brand over harboring fakes on the site.  Nearly $82billion is lost annually to designers' fight against fakes. Many designers are putting millions into this vigilance--millions away from the design shop and brand promotion.  Although the money is a major factor, let us not forget the disregard for brand reputation, too.  It's so similar to one's personal reputation.  Guard it with your life.  

B.A.F.F.L.E.D. Fashion Law

Blissful Ignorance: Abercrombie Can’t Pretend They Didn’t Know They Were Discriminating

By Dana Martin

All fashion enthusiasts will agree that the way we dress is an important aspect of our self-expression. For many people, clothing choices go beyond a way to express their personal style and become a part of their religious, cultural, or gender identity. However, in the working world, an employer has the legitimate right to impose a dress code on his or her employees to convey a sense of professionalism or uniformity in that business. What happens when the right of an employer to enforce a dress code conflicts with an employee’s right to dress in accordance with his or her beliefs? The recent Supreme Court decision, EEOC v. Abercrombie and Fitch Stores, Inc., highlights the importance of preserving the rights of the individuals even when they may conflict with dress code policies.

            Title VII requires that any dress code imposed by an employer not be discriminatory towards any one group and be enforced consistently and evenhandedly. This does not necessarily mean that the dress codes may not be discriminatory in effect. For example, the Abercrombie policy in question, banning any “caps” while at work, is not outwardly discriminatory in that it targets one group over another. Rather, no employee, regardless of religious background, was permitted to wear a cap. The effect, however, was discriminatory against women who wore a headscarf for religious reasons. When a policy is not outwardly discriminatory but still has a discriminatory effect, the employer must allow accommodations and exceptions when requested by employees whose beliefs are contrary to the dress code, unless the accommodation would cause “undue hardship” on the employer. An example of an undue hardship would be a safety or health issue caused by the accommodation for which there is no other reasonable alternative. (EEOC v. Grand Central Partnership – sanitation workers with dreadlocks could not be terminated for refusing to cut their dreadlocks for religious purposes so long as they could reasonably be tied up neatly).

            In the Abercrombie case, Samantha Elauf applied for a job at one of the retail stores in Oklahoma. She impressed the assistant manager at the interview, however, was not offered a job because her headscarf conflicted with Abercrombie’s controversial “look policy.” The assistant manager did not ask about Elauf’s religious practices, rather, she assumed she wore the scarf for faith-based reasons and assumed that she would wear it every day. Abercrombie contended at trial that Elauf never requested an accommodation and the manager did not actually know whether or not her headscarf was a religious observance. Therefore – they claim – they did not discriminate by denying her the job since all they knew was that this applicant was violating their look policy. They assert that any suspicions about her religious beliefs were irrelevant without actual knowledge or a request for accommodation. The Court ruled against Abercrombie and held that you cannot deny a prospective employee a job out of fear that they might request an accommodation. Title VII only requires that the adverse employment action be at least motivated in part by religious discrimination. Even though the manager was not positive that Elauf wore a headscarf for religious purposes, she admittedly at least suspected that to be the case and did not hire her because of it. This is sufficient to conclude she was motivated by religious discrimination even without actual knowledge of Elauf’s religion.

            The Court recognized that this ruling may require employers to ask prospective employees about their religious beliefs and whether they would need an accommodation. This could potentially lead to stereotyping and uncomfortable conversations. After all, if Elauf did not wear a headscarf for religious purposes but rather as a personal fashion choice, Abercrombie would have been justified in requiring that she take it off in compliance with their policy or risk being terminated. However, the interest in preventing discrimination before the prospective employee has even had a chance to request an accommodation outweighs this potential for awkward conversations.

          Abercrombie is no stranger to discrimination law suits. In 2004, they settled a case in which they were accused of keeping minority employees in back-room, stocking positions and reserving the sales floor spots for white workers. The result was a $40 million settlement and an agreement on Abercrombie’s part to hire diversity recruiters at the corporate level. Even more similar, in 2011 the company settled a suit in which a Muslim woman was fired for refusing to remove her headscarf. Allowing headscarves was determined to be a reasonable accommodation, and “distracting from the brand” was not considered an “undue hardship” on Abercrombie. Here, Elauf’s case was a great victory in taking protections for an individual’s right to dress according to their religious beliefs in the work place one step further. The effect of this case is that employers will not be able to use “I didn’t really know” as an excuse to cover up discriminatory motives in hiring practices. It is important that the court continue to recognize how important clothing choices can be to one’s sense of self and protects that right in the work place and beyond.

Stay tuned for more on ethical fashion...

B.A.F.F.L.E.D. Fashion Law

Fashion Law Gets Accredited!

Ms. Susan Scaffidi has done it again!  She continues to take our beloved niche to the next level, with the Fashion Law Institute at Fordham School of Law now offering an LL.M. in Fashion Law.  An M.S.L. for nonlawyers will be offered as well.

Offering part-time and full-time programs, this feat is a major step for the fashion law niche.  After opening the Fashion Law Institute in 2010, the notariety and reality of its need became clearer and clearer.  I even had the joy of attending the annual Symposium in  2013.  It was amazing!  Fashion trailblazer  Diane von Furstenberg will provide seed money for the program and continue as an advisor to the Institute.  She's been pivitol to its success from the start.

Congrats a zillion to Fordham and the Fashion Law Institute.  We're so excited about this next step!

B.A.F.F.L.E.D. Fashion Law

The True Cost:  A Fashion Documentary Behind Manufacturing--

While many see fashion and the industry at large to be frivolous and superficial, it's actually a billion-dollar market with many very serious issues.  Garment production is one of the most serious--especially when it comes to the working conditions employees are subject to.

The fast-fashion niche, you know--the likes of Forever 21, H&M, Zara, etc.--have created their own place in the industry.  This segment has many positives, particularly for young shoppers, shoppers on a budget, and anyone needing something trendy in a hurry.  However, negatives have come along with this market, too.  They've been on the receiving end of lawsuits for infringement on high fashion/designer styles, discriminatory hiring practices, and the labor conditions of their factories.  Fast-fashion is all about filling the racks in a hurry.  Someone has to make those garments--often under harsh conditions.

Things have changed drastically over the last few decades.  In the 1960s, 95% of American attire was made right here in the states.  Now, that number is flipped to about 97% produced overseas.  

Executive Producer Livia Firth of The True Cost, a documentary digging deep into a number of these issues, noted at the NY screening "We are sold this myth that to buy a dress for under $10 is democratic--but it's democratic for who?  We discard faster and faster, and that is how the consumer becomes poorer and poorer.  2 of the 10 richest men in the world are the owners of Zara and H&M.  I think it says a lot about how they make their money." 

Her film delves into the realities of factory workers in places like Bangladesh and Columbia.  It puts a face behind the garments so many throw on and throw away.  Stepping far behind the scenes of your favorite mall stop, you'll see a story behind every thread, of people who can't afford what they make, and what they endure during production.

Check the trailer. This is a must-see. 

The True Cost is currently available on iTunes, Amazon, DVD, and Blu-ray.  

For more on labor issues in fashion, click here.

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

DVF Urges Fair Treatment of Models--

Diane von Furstenberg is such a fashion icon.  She's a trailblazer in so many ways.  She brought us the wrap dress, has been a major supporter of anti-piracy legislation for fashion on Capitol Hill, and worked with fashion law leader Susan Scafidi in establishing the Fashion Law Institute. Now, she's commanding fair treatment of models as NYFW gets rolling this Wednesday.

Sure, fair treatment of models is nothing new.  We've talked about labor issues models face and the work Stand Up For Fashion (STUFF) has done.  The push from such a fashion powerhouse just might be, though.  For years, major fashion week participants have been scrutinized for their lack of diversity in runway shows and the self-esteem damaging atmosphere for the models they do choose.  As longtime President of the Council of Fashion Designers of America (CFDA), Ms. von Furstenberg is saying loudly--no more!

Along with CFDA CEO Steven Kolb, Diane has penned a letter, encouraging this upcoming fashion week be just as much about debuting new trends and styles as it is debuting new attitudes.  She continues to remind us, beauty and fashion start on the inside.  

Check out the letter for yourself.

We love DVF, don't you?!

B.A.F.F.L.E.D. Fashion Law

Fashion Law and the Local Economy--

Fashion law is in fact taking over the globe.  But, its impact is local in nature, too.  Despite there being an ongoing battle for protection of fashion designs at the national level in the U.S., many large cities, are doing their part to protect brands as well as their local economies.

While fashion trends change almost faster than the seasons, brands are made to last forever.  Creators set out to achieve longevity.  In recent years, there have been a number of efforts to curb harm to brands.  Whether it be through the sale of fakes, thereby infringing on trademarks, or even penalizing the consumers of fakes, local governments are taking no prisoners in preserving the integrity of fashion.

What's been happening?!

• Both coasts are equipped with amazing fashion law programs to help train upcoming lawyers in this billion-dollar industry.  The Fashion Law Institute at Fordham and the Fashion Law Project at Loyola dig deeply into fashion law issues.  Being in the garment districts of the nation's 2 largest cities doesn't hurt either.
• In 2011, the New York City Bar Association established a fashion law committee.  Many bar associations across the country have held symposiums on the topic since then.  
• In 2013, NY Councilwoman Margaret Chin introduced an ordinance to penalize counterfeit purchasers.  It's not far-fetched--Italy, France, and England all penalize consumers for purchasing fakes.  The NYC measure didn't pass, but it definitely got the attention of counterfeiters and the impact tax avoidance has on the local economy.  She introduces a subsequent effort to prohibit the storage or sale of fake goods in any NYC building.  She's not giving up on this. 
• Chicago makes necessary use of its Trademark Violation Ordinance, which revokes the business licenses of retailers possessing and selling counterfeits.  O'Hare Airport, recently named the busiest in the U.S. has uncovered millions in fakes at their international gates as well.  
• North Carolina isn't playing any games either.  The Secretary of State's office led police throughout NC on Operation Faux Pas, seizing more than $12million in fakes across the state.  

What's set to happen next?
Local governments are pressed to keep up the services they've been able to provide.  We need smooth streets and snow plowed, right?  Losing out on tax revenue is no help. Locales with counterfeit districts, like Canal St. in NYC are watching for dealers who skimp residents of their service money and are issuing penalties left and right.  Cities with flea markets are heavily watching the products coming through their borders, too.  Many large flea markets have been the scene of busts when local or federal authorities uncover fakes sold by vendors.  

Surely fashion industry leaders like Susan Scafidi and Diane von Furstenberg will continue working with the CFDA on federal legislation as well.  

We'll continue watching the counterfeit scene.  You should do the same.  Fakes are never in fashion.