Fashionable sports fans recently packed the room at Fordham Law for a Fashion Law Institute panel, “Athlegal: Sports, Innovation, and the Future of Fashion,” evidencing widespread interest in the relationship between sports and style. After signing in next to a pair of classic Chuck Taylor All-Stars emblazoned with the Institute’s logo of a needle and thread forming a gavel, this author spent far too much time contemplating the purchase of his own custom pair of Converse sneakers while at the breakfast buffet. The audience was lively and eager to meet the panel, buzzing from either caffeine or their morning workout endorphins.
The simultaneously informative and engaging panel was composed of Angela Byun from Conde Nast’s Golf Digest; Ronald S. Chillemi from the sports apparel company Fanatics, Inc.; James Grooms from New York Road Runners, organizer of the New York City Marathon; and Susan Rohol from Nike; and it was moderated by Professor Susan Scafidi, founder and director of the Fashion Law Institute.
Given the widespread adoption of the awkward but ubiquitous term “athleisure” and the rapid takeover of consumers’ wardrobes by that product category, the panel’s topic was extremely timely. While the relationship between sports and fashion is straightforward, from professional athletes appearing in fashion editorials to designers showcasing track pants on the runway, the value of intellectual property for an athletic apparel company is decidedly more complex. Topics ranged from two recent lawsuits in the athletic apparel industry, both involving Lululemon against competitors, to an overview of the various tools in a company’s intellectual property arsenal including patents, further divided into design and utility; copyright; trademark and trade dress; and licensing. Though opinions diverged regarding the most effective intellectual property tool against competitors, trademark licensing and copyright seemed to tie for first place, with Nike leading the pack in design patent as a top-ten registrant in the U.S.
The panel also discussed the technological advances that many manufacturing companies are incorporating into their daily operations. These advances result in improvements not only in the manufacturing process but also the final product. On an environmental note, many companies are engaged in admirable sustainability efforts such as using lasers to reduce waste. Other revelations included the contribution of athletic apparel to the fashion industry as a whole, including advances in textile technology. The sheer size of some athletic apparel companies’ intellectual property portfolios impressed attendees, as did the Nike origin story featuring track coach and inventor Bill Bowerman, co-founder, experimenting with a waffle iron to create a sole with greater traction on the company’s first shoe, debuting in 1974.
In the realm of elite competition, innovation in performance apparel can even go too far, as in the case of the full-body Speedo LZR swimsuit that was ultimately banned by the international body governing swimming competition as unfair to more traditionally dressed athletes. When does advanced apparel technology confer too great an advantage? The panelists agreed that each case is different, but that the analysis turns on accessibility of improved technology to all competitors.
So just how important is intellectual property to the athletic industry? It’s a heavyweight contender with a knockout punch. Any, or all, forms of IP can be used against parties attempting to unfairly profit from a company’s business. In other words, these tools protect the value of the brand, both in terms of economic and social value. Similarly, intellectual property considerations are becoming increasingly important to individual athletes. Don’t believe me? Just look at Michael Jordan’s brand.
Consumer demand in the overlapping performance and athleisure apparel categories remains high, as both athletes and fans seek out ever-increasing performance, comfort and style. This growing sector presents stylistic and financial opportunities for companies seeking market share, but copyists and counterfeiters also present challenges. In the end, best legal practices may not guarantee winning the marathon, but companies can thank their intellectual property portfolios and enforcement programs for keeping them in the race.
by Vincent D. Nguyen