B.A.F.F.L.E.D Fashion Law
Saved By The Trinkets
Hello loves,
Are any of you an aspiring luxury handbag designer?
Recently, I had to do some extensive research on, how a designer goes about
acquiring protection for their original designs. As many of you may already
know, you are not able to gain protection for any feature of your design that
is “functional”. Function, meaning that in order to make the object what it is,
certain aspects are needed. An example of a functional aspect is the standard
buttons on a coat. However, if a designer goes as far as to 1) create a sculptured
button that is an original idea, 2) that can stand alone as a piece of art if
separated from the coat; those decorative/ornamental, buttons can be gain
copyright protection.
How does this apply to handbags? Before law school I often
wondered how despicable individuals, were able to take a handbag and create
look alike knockoffs. Well, know that I am completely judging anyone who would
take someone else’s idea and try to pass it off as their own. Even in the
fashion industry this is still considered stealing!
First, if you are a designer of handbags, you are able to
copyright and or trademark all parts of your handbag that is NOT functional,
but conveys information. Therefore, all elaborate designs that are your
original creation such as graphics, embroidery, unique designs in fabric and
very unique jacquard weaving, can be federally protected. Brand logos are protectable, too,
Second, high end handbags have
trinkets on them that are removable. If you take a closer look, these trinkets
usually resemble the designer’s federally protected trademark in a three
dimensional form. Some bags also have a silk lining that reflect the designer’s
trademark.
Third, get to work. Go forth and be creative. Put your
designs out for the public to purchase.
Until next time…
SPOT THE FAKE...
B.A.F.F.L.E.D. Fashion Law
Beverly Hills Fashion Law Symposium 1/12!
Fashion Forward: Wearable Technology, Design Patents, Privacy, and the latest Fashion Law Cases--
It's time again for some fab fashion law symposiums! Well, it's actually always time, but the next one is fast approaching. The fashionable folks at the Beverly Hills Bar Association are hosting a wonderful panel discussion this coming Thursday! Some fashion law faves will be presenting, so we know it's sure to be a good time.
Check out the details below and register NOW!!
Fashion Forward: Wearable Technology, Design Patents, Privacy, and the latest Fashion Law Cases--
It's time again for some fab fashion law symposiums! Well, it's actually always time, but the next one is fast approaching. The fashionable folks at the Beverly Hills Bar Association are hosting a wonderful panel discussion this coming Thursday! Some fashion law faves will be presenting, so we know it's sure to be a good time.
Check out the details below and register NOW!!
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B.A.F.F.L.E.D. Fashion Law
France's Fashion Laws Could Influence Change in the U.S.--
While a change in the models we see strutting down the catwalk may be a fashion week or 2 away, a new French law could be just what effects the change. This past December, France passed a law ultimately protecting the health of fashion models, requiring medical professional clearance to work. The requirements are for both print and runway models.
The U.S. has taken a step to address child labor laws at the national level, but is also being pressed to do the same for adult models hitting runways, commercials, and print ads. With Paris being considered a fashion capital to many, this landmark change happening on their turf 1st is likely to force a tide change in other fashionable cities and countries as well. The American Journal of Public Health applauded the French law and encouraged something similar to pass in America. It is highly unlikely a designer would show looks on certain models in 1 city, without keeping those looks pretty similar in another.
On the heels of our race in fashion post, it is important to know diversity in fashion calls for both cultural and physical integration. As many French designers faced backlash for resisting the change and pressure to "infringe on their creative control", the same would be the case here if the battle got too hot. With many designers already responding to calls for more diversity in fashion--working to address both racial and physical inequalities in the industry, we are hopeful this trend will be as long-standing as denim in every closet.
International Business Times delved a bit deeper into this trend change. Check our more here.
...See, we told you fashion law was intellectual property and more!
While a change in the models we see strutting down the catwalk may be a fashion week or 2 away, a new French law could be just what effects the change. This past December, France passed a law ultimately protecting the health of fashion models, requiring medical professional clearance to work. The requirements are for both print and runway models.
The U.S. has taken a step to address child labor laws at the national level, but is also being pressed to do the same for adult models hitting runways, commercials, and print ads. With Paris being considered a fashion capital to many, this landmark change happening on their turf 1st is likely to force a tide change in other fashionable cities and countries as well. The American Journal of Public Health applauded the French law and encouraged something similar to pass in America. It is highly unlikely a designer would show looks on certain models in 1 city, without keeping those looks pretty similar in another.
On the heels of our race in fashion post, it is important to know diversity in fashion calls for both cultural and physical integration. As many French designers faced backlash for resisting the change and pressure to "infringe on their creative control", the same would be the case here if the battle got too hot. With many designers already responding to calls for more diversity in fashion--working to address both racial and physical inequalities in the industry, we are hopeful this trend will be as long-standing as denim in every closet.
International Business Times delved a bit deeper into this trend change. Check our more here.
...See, we told you fashion law was intellectual property and more!
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
Same Shirt, Different Name--Zara Sued (Again) for Copying--
Zara was just sued by the socially-conscious brand, Reformation for infringing on their model-moniker-bearing sweatshirt design. Reformation previously sold a plain grey sweatshirt with model Cindy Crawford's name across the chest. Zara is now selling a similarly styled shirt--but bearing the model Elle Macpherson's name.
Zara still has the shirt up for sale on their site, though a cease and desist letter has to be in transit as we speak. There are clearly some trademark and even publicity rights issues on hand here as well. Who knows if Elle approved of the shirt. Reformation actually got permission from Cindy Crawford for the sweatshirt bearing her name. She posed for promos.
This will be interesting...yet familiar territory for Zara. They've been sued in the past for copying, namely by Christian Louboutin. Tom Ford has expressed frustration in being copied by Zara--Dior, Celine, and Kenzo have been aggravated as well.
Here they go again.
B.A.F.F.L.E.D. Fashion Law
Cultural Appropriation & Fashion Law--
One of the first cases making waves in this new year is Navajo Nation's lawsuit against Urban Outfitters. It began in 2012 when Navajo Nation sued the retailer for using "Navajo" to describe a variety of items--including underwear and flasks.
Last week, the judge on the case ruled the Nation has standing to protect use of the term "Navajo", keeping it from being used, particularly when the usage is inappropriate, unauthorized, and undesirable. Clearly these items are not genuine Navajo. The Indian Arts and Craft Act gives Native American tribes the tools necessary to protect their culture and how it is uses in the marketplace. Urban Outfitters claims the term "Navajo" is a generic term, simply used to describe. Members of Navajo Nation obviously disagree. This case will likely go to trial, as Navajo Nation is seeking damages--now for an undisclosed amount.
This case could provide the landmark decision on cultural appropriation. But, where are the lines? Many celebrities have been accused of cultural misappropriation lately, and a case like this could absolutely provide a pathway for the handling of cultural mishandlings. In a letter from a Member of the Navajo Nation to Urban Outfitters CEO, the writer expressed complete disgust over their "blatant racism and perverted cultural approbation".
We've seen Urban Outfitters with such fashion faux pas before--like "Obama Black" Holocaust Shirt". What are they not getting?!? In the past, they explained themselves saying it was a careless error in how they edited their website. Apparently there was also an "Obama Blue" shirt. Emm. Ok. They seem to get this wrong quite a bit...
To what degree do we own our cultural practices? What cultural practices mean the most to you? Why?
Discuss!
One of the first cases making waves in this new year is Navajo Nation's lawsuit against Urban Outfitters. It began in 2012 when Navajo Nation sued the retailer for using "Navajo" to describe a variety of items--including underwear and flasks.Last week, the judge on the case ruled the Nation has standing to protect use of the term "Navajo", keeping it from being used, particularly when the usage is inappropriate, unauthorized, and undesirable. Clearly these items are not genuine Navajo. The Indian Arts and Craft Act gives Native American tribes the tools necessary to protect their culture and how it is uses in the marketplace. Urban Outfitters claims the term "Navajo" is a generic term, simply used to describe. Members of Navajo Nation obviously disagree. This case will likely go to trial, as Navajo Nation is seeking damages--now for an undisclosed amount.
This case could provide the landmark decision on cultural appropriation. But, where are the lines? Many celebrities have been accused of cultural misappropriation lately, and a case like this could absolutely provide a pathway for the handling of cultural mishandlings. In a letter from a Member of the Navajo Nation to Urban Outfitters CEO, the writer expressed complete disgust over their "blatant racism and perverted cultural approbation".
We've seen Urban Outfitters with such fashion faux pas before--like "Obama Black" Holocaust Shirt". What are they not getting?!? In the past, they explained themselves saying it was a careless error in how they edited their website. Apparently there was also an "Obama Blue" shirt. Emm. Ok. They seem to get this wrong quite a bit...
To what degree do we own our cultural practices? What cultural practices mean the most to you? Why?
Discuss!
B.A.F.F.L.E.D. Fashion Law
Fab Fashion Law News from 2015--
It's the time of year--and frankly the last day--do to these listicles discussing the year that was. While we've retired our weekly Tuesday Tops feature (which still has great stuff to check out), we still like the idea of compiling solid, handy lists.
Since fashion law is our specialty, and we want you to stay as up-to-date as possible on our favorite field, we're listing the Top Fashion Law Stories of 2015. Let's hit it backwards, starting with last week...
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Fashion Law Is Back on Capitol Hill--Child Labor Laws for Fashion Shows
Blissful Ignorance: Abercrombie Can't Pretend They Didn't Know They Were Discriminating By: Dana Martin
Why You Should Care About Fashion Law By: Dana Martin
Can't wait for more fashion law news in 2016!
B.A.F.F.L.E.D. Fashion Law
France Takes A Stand Against Unhealthy Modeling--
Just as U.S. Congresswoman Meng (D-NY) is working to address child labor issues in the United States, France is working to improve the culture of fashion modeling in one of the industry's oldest markets.
To ensure the reforms are real, France is requiring doctors' approval for models to participate in shows, proving they are not too thin, and healthy enough to take the catwalk. This is a major step in an industry that's been fighting labor health and image issues for so long. The bill passed by the French National Assembly also requires photos which have edited a model's appearance to note what edit was made.
Similar to the laws already in place in Italy, Spain, and Israel, France's law includes fines for modeling agencies and advertisers in non-compliance. While there is no law of this kind in America, we hope this is the start of a trend to promote not only healthy bodies in the modeling industry--of all sizes, but positive body images and high self-esteem, too.
Cheers to France on this move.
Just as U.S. Congresswoman Meng (D-NY) is working to address child labor issues in the United States, France is working to improve the culture of fashion modeling in one of the industry's oldest markets.
To ensure the reforms are real, France is requiring doctors' approval for models to participate in shows, proving they are not too thin, and healthy enough to take the catwalk. This is a major step in an industry that's been fighting labor health and image issues for so long. The bill passed by the French National Assembly also requires photos which have edited a model's appearance to note what edit was made.
Similar to the laws already in place in Italy, Spain, and Israel, France's law includes fines for modeling agencies and advertisers in non-compliance. While there is no law of this kind in America, we hope this is the start of a trend to promote not only healthy bodies in the modeling industry--of all sizes, but positive body images and high self-esteem, too.
Cheers to France on this move.
B.A.F.F.L.E.D. Fashion Law
Fashion Law Back On Capitol Hill--
Now this is fashion law! Following many attempts (and surely more to come) to get protection for fashion designs, there is a new push for legislation in the fashion industry. U.S. Representative Grace Meng (D-New York) has filed the Child Performers Protection Act of 2015. Never before have we seen child labor standards of this sort at the federal level.
Being a patchwork of regulations across the state for so many years, child labor regulations could now see national standards. Representative Meng's billl, H.R. 3383, amends the Fair Labor Standards Act of 1938, updating child labor standards for performers including actors and models. The legislation prohibits employers or contractors from: (1) employing any child performer unless a trust is set up to receive at least 15% of their earnings, (before accepting work) to be held inaccessible until they reach the age of 18; and (2) compensating a child performer in any form besides cash wages, exclusive of board, lodging, or facilities. Accepting in-kind payment is great sometimes, but it should definitely be a mere bonus. It'll never pay for college or be a base for financial security and good savings habits. Anyone working should be compensated--no matter the age. So many brands make more than enough to properly compensate their coveted talent.
As a legislative lawyer, I am excited to see this issue before the legislature. It is a long time coming, even with the Council of Fashion Designers of America having offered guidelines on model treatment for sometime now. Always an industry leader, CFDA has offered a strong health initiative, with self-imposed rules to bar models under 16 from runway shows, educate on eating disorders and empower positive body images, and offer fitness education as well. Designer and Boss role model Diane von Furstenberg has made her own pushes for fair and appropriate treatment of models, most recently during fashion week. Surely this foundation will be helpful in passing H.R. 3383. While few bills pass any legislature as they arrive, this bill takes a great step forward in parity and standardization in the fashion industry. Protecting models and easing the labor challenges and disparities is a much-needed step forward.
The bill has been assigned to the House Committee on Education and the Workforce. We'll be watching.
For more on labor issues in the fashion industry, check out these posts:
B.A.F.F.L.E.D. Fashion Law
Big Brands Keep Fighting Fakes--
Counterfeiting is about 2% of world trade--equating to about $1trillion, according to the International Chamber of Commerce. Make no mistake, many purchasers of counterfeits were never going to purchase the real thing anyways. But, some were, and got bamboozled. Whether they were looking for the real thing or just something to pass at a quick glance, the harm done by fakes doesn't change. There's a cost far greater than the black market price.
Counterfeits are making waves in the fashion industry and it's nothing good. In recent months, designers have had to step their protection game up in several ways, just to keep the infringers at bay. As reported earlier this week, Christian Louboutin, Jimmy Choo, Celine and others have sought a slew of design patents to protect their creations.
The lack of copyright protection in America makes protection a bit of a challenge. Trade dress, trademark, and patents are heavily depended on, but take some time to secure. Stella McCartney had to sue Steve Madden for infringement on her "Falabella" bag--a bag already holding 2 design patents for its continuous chain design. Tory Burch also came up big recently in fighting for her "Isis Cross" trademark. She won $38.9M in a lawsuit against Lin & J to protect her trademark. Despite claiming victory over YSL, Louboutin is still awaiting trademark validity from the EU. This stems from their 2013 battle with Van Haren infringing on the red soles.
While keeping us showered with designs for the new season, designers have to keep an eye on the counterfeit market. According to NetNames, a London-based brand protection firm, counterfeiting is getting a consistent boost from e-commerce, channeling sales up about 15%. Much of the items are sourced through China--nearly 70%. The raw materials are there. The factories are there. And, the labor is pretty inexpensive. An NYC couple was was just charged with conspiring to traffic counterfeits after being caught with over 130,000 counterfeit items in their rented warehouse. Many of the goods were said to have been sourced from China. It's the largest source, but certainly not the only.
Counterfeiting is about 2% of world trade--equating to about $1trillion, according to the International Chamber of Commerce. Make no mistake, many purchasers of counterfeits were never going to purchase the real thing anyways. But, some were, and got bamboozled. Whether they were looking for the real thing or just something to pass at a quick glance, the harm done by fakes doesn't change. There's a cost far greater than the black market price.