On the Cutting Edge

Forever 21 striped choker -- in the immortal words of Led Zeppelin,

Forever 21 throttled in Gucci case

By Jeff Trexler When Forever 21 filed for a declaratory judgment against Gucci in retaliation for Gucci's C&D, it was a move clearly designed to go viral -- and outside the courtroom, it worked. The fast-fashion company's complaint was instant clickbait, with countless headlines propagating Forever 21's florid claims that it could vanquish Gucci's purported stranglehold on stripes. Monday's summary judgment in Gucci's favor is a pointed reminder not to judge the strength of a case by its likes and shares. Yes, on the surface the judge leaves the door open for the Forever 21 to amend its complaint to address the issues raised in his order, but those of you who have been in the legal biz for any length of time know the old rhetorical trick. The judge disses Forever 21's arguments with cursory brush-offs that can be summarized as follows: However, since the Oh Really? Owl meme has not been formally recognized even by the Ninth Circuit as sufficient grounds for dismissing a case, the judge oh so graciously, with expansive deference to court procedures, gives Forever 21 eleven whole days to come up with a new basis for its lawsuit "if plaintiff still wishes to pursue this action." Which is secret judge code for "No, you really don't." order-forever-21-gucci

Forever 21 throttled in Gucci case

By Jeff Trexler When Forever 21 filed for a declaratory judgment against Gucci in retaliation for Gucci's C&D, it was a move clearly designed to go viral -- and outside the courtroom, it worked. The fast-fashion company's complaint was instant clickbait, with countless headlines propagating Forever 21's florid claims that it could vanquish Gucci's purported stranglehold on stripes. Monday's summary judgment in Gucci's favor is a pointed reminder not to judge the strength of a case by its likes and shares. Yes, on the surface the judge leaves the door open for the Forever 21 to amend its complaint to address the issues raised in his order, but those of you who have been in the legal biz for any length of time know the old rhetorical trick. The judge disses Forever 21's arguments with cursory brush-offs that can be summarized as follows: However, since the Oh Really? Owl meme has not been formally recognized even by the Ninth Circuit as sufficient grounds for dismissing a case, the judge oh so graciously, with expansive deference to court procedures, gives Forever 21 eleven whole days to come up with a new basis for its lawsuit "if plaintiff still wishes to pursue this action." Which is secret judge code for "No, you really don't." order-forever-21-gucci

Athlegal Panel Recap

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

Model Statement: Kudos to Kering and LVMH

The Fashion Law Institute applauds “The Charter on Working Models and Their Well-Being” issued jointly by the world’s two largest luxury conglomerates – and its challenge to the rest of the fashion industry to join them. This statement is the latest crest of a growing wave of concern for the health, safety, privacy, and dignity of fashion models that has included public regulation (in order: Madrid, Milan, Israel, New York State, France), industry guidelines (CFDA Health Initiative, Danish Fashion Ethical Charter), advocacy (Model Alliance, initially founded and directed with the assistance of the Fashion Law Institute), and the voices of current modeling industry insiders (notably and recently James Scully). Not since Vogue’s decision to cast only models 16 and over for the editorial content of its editions worldwide, however, have individual fashion-related companies put their reputations on the line and made such a public commitment to change.

The Charter is a comprehensive, standard-setting, buck-stops-here statement that has the potential to address the most difficult aspect of reform in the modeling industry, namely finger-pointing and the passing of responsibility. If designers say they cast U.S. size zero models because that’s who agencies send, and agencies say casting directors and fashion houses only select size zero “girls,” and young models are caught in the middle, it’s difficult to effect change. By stepping up and creating the Charter, LVMH and Kering – and their many influential labels – could help break the impasse.

Some aspects of the Charter will be difficult to monitor – the measurements of a U.S. size zero or French 32 vary from brand to brand and even garment to garment, for example – but collectively the provisions reinforce one another and reflect an understanding of models’ basic needs and concerns. After listening to models’ surprised and overwhelming gratitude when we offered something as simple as bottled water while casting a Fashion Law Institute show a couple of years ago, and previously seeing a model nearly faint after refusing to eat or drink backstage, we are convinced that even acknowledging the issues is a step in the right direction.

While the Charter’s creators can expect positive publicity, their joint statement actually carries significant risk. There are bound to be instances in which the Charter’s ideals are not met, and the sharp-eyed gaze of a thousand models’ mobile phones and social media accounts could potentially embarrass the companies. And in fashion, the most feared sanctions aren’t legal fines or even the potential for lawsuits – they’re negative headlines.

So kudos to Kering and LVMH for their ethical actions, and here’s hoping that other brands, modeling agencies, media outlets, trade associations, and individuals throughout the fashion industry will see them as role models.

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