Thanks to the abundance of fashion industry-specific lawsuits at play, no shortage of trends have emerged. In addition to recent runway trends, there are a slew of legal trends in play – from large-scale fashion entities working to obscure the industry’s dirty little secrets (by way of threats of litigation and the employment of non-disclosure agreements and non-disparagement provisions) to the ever-growing importance of color as a legally-protectable business asset.
1. Fashion Wants Creatives to Just Keep Quiet. The British Vogue v. Lucinda Chambers/Vestoj saga reeked of fashion industry giants’ often dictator-dictated relationship with their increasingly taxed and ever-disposable (something Chambers speaks to in her interview) creatives. It also presented a potential legal mess – from Vestoj’s temporary removal of the article from the web to the subsequent amendment of the article to remove material that Conde Nast’s legal team alleged was “defamatory.”
The larger trend: Fashion’s efforts to insulate itself from bad press are alive and well.
2. Red, Yellow, Purple, Pink, Blue: Brands Continue to Wage War Over Color. From Louboutin and YSL to Pandora and PayPal, the battle over color has been roaring in recent years.
The larger trend: Regardless of the case, the importance here is the role that color plays in a brand’s enduring identify and its marketing strategy. In much the same way as a trademark serves as an immediate indicator of the source of a product or service for consumers, color can play serve an important source-identifying feature. Similarly, just as many brands have been able to monetize the recognizability and appeal of their trademarks, they are increasingly looking to color for the very same benefits.
3. Fashion Brands are Often Misunderstood in Their Fight Against Similarly-Named Brands. Forget tech-infused fashion or concert merch or Margiela “inspired” garments for a moment. A looming trend in fashion has nothing to do with the clothing and accessories themselves but concerns the names that adorn their labels. Bib brands are increasingly going after little-known brands for using their names.
The larger trend: Luxury fashion brands, in particular, have spent many, many decades, and in some cases, even centuries, building esteem and goodwill around their names (and thus, their trademarks), and in an attempt to ensure exclusive rights, they are coming down hard on others, regardless of the risk of bad press that comes with such David v. Goliath-style fights.
4. Fashion Industry Internship Lawsuits: Where Are We Six Years Later? Not too long ago, unpaid interns came out in droves to call foul on the industry and its pervasive use of unpaid internships, which according to no shortage of these class action lawsuits, was being done in order to avoid paying entry level employees. Aside from some of the small brands that were on the receiving end of lawsuits, the vast majority of the defendants were sizable industry entities.
The larger trend: Unpaid interns are rallying to claim foul on former “employers,” but as of this month, the U.S. Circuit Court of Appeals for the Second Circuit handed internship-offering institutions a win, rejecting claims that Hearst “systemically” exploited eager young students by getting them do entry-level work for free by labeling them as “interns.”
5. What is Really at Stake When an Indie Brand is Copied? A rise in copying call-outs on Instagram and other platforms have given rise to what the media has deemed “social shaming.” The question is: What is the actual impact that such copying has on the indie designers themselves? And is it an effective form of action?
The larger trend: As Deva Pardue, the founder of For All Womankind, a New York-based “Fempowerment” design initiative, recently learned when Walmart-owned ModCloth ignored her social media call-outs, while such instances may provide some relief (the allegedly infringing product was pulled from ModCloth’s website), monetary relief – aka lost profits, etc. – is almost impossible to come by.
6. Are Photographers, Influencers the New Unpaid Interns of the Fashion Industry? Speaking of unpaid interns, some of the fashion industry’s most sought-after street style photographers claim that influencers are posting their copyright-protected street style photos on social media in order to fulfill their obligations to the brands and retailers that are paying them to drive traffic and induce sales (by wearing their garments and accessories).
The larger trend: It is rather difficult to ignore how much this feels like yet another example of the fashion machine taking advantage of those that are situated further down on the totem pole.
7. Should Social Media Platforms Do More to Curb Sponsored Ads for Counterfeits? Thinking you can trust the websites promoted by social media platforms? Think again – because even seemingly legitimate sites are pointing consumers towards websites selling counterfeits.
The larger trend: While social media platforms are said to be working hard to scrub infringing materials from their ranks, users are putting social platforms to work for them in their efforts to hawk counterfeit products. This is a sign of a larger issue, the potential inability of the various domestic intellectual property laws to keep up with the use patterns of society and the creation of new technology.
8. Chanel, Gucci, Louis Vuitton File Suits Against Individual Online Marketplace Sellers. While we are used to seeing design houses file trademark claims against a large number of websites and website operators in connection with the sale of counterfeit goods, it is not quite as commonplace for them to file suit against individual marketplace users, but that may be changing. Increasingly common is an approach Louis Vuitton first took in July 2013, when it filed suit against individual iOffer users.
The larger trend: It is interesting that these brands are targeting individual online sellers for selling counterfeit goods, as opposed to suing the main platforms, Amazon and iOffer.
9. Forget Trademarks, Trade Secret Information Proving Popular in Bankruptcy Sales. Early this year, Sycamore Partners won the auction for the e-commerce business and intellectual property of bankrupt the U.S. women’s apparel retailer, The Limited, with a bid of $26.8 million. The slew of recent bankruptcy auctions underscore the interest that the e-commerce business and intellectual property of even bankrupt retailers can attract, and the value that they can garner.
The larger trend: While much has not been made of the draw of trade secrets in the ongoing rounds of bankruptcies, they should not be overlooked in any instance.
10. Dupe Cosmetics Prove Big Business, But Not Without Legal Complications. In the fashion and beauty worlds, the copying of higher-priced brands is widespread. While in fashion, the term for copies of designer goods is “knockoffs” and infringements or counterfeits, in beauty, the term is “dupes.” To beauty brand consumers the word “dupe” has come to mean a cheaper alternative to higher-end products.
The larger trend: The concept of the dupe has become a mainstay of the $56.2 billion beauty industry in the United States, and with it, legal concerns, as many dupes have characteristics or qualities identical, or at least very similar, to the popular products of their higher-end counterparts – which can give rise to trademark and/or trade dress claims.