As everyone knows, male fashion lawyers tend to be hunks. I was a bit late getting the memo, but on the insistence by my German doctor, I finally started exercising, and being German myself, I of course overdid it, to the point that my shirt maker (Turnbull & Asser) had to adjust my pattern and my tailor (Henry Poole) is on notice that it will need do the same. Because both usually expect rounding middles by the time customers reach my point in life, that made me feel quite good. But what I next sought to do in the name of fashion was of no concern to either of them.
It would be hard not to notice that the trend is for less body hair on men. When I was growing up, what was said about something that toughened you as a man (such as strong drink) was, “That will put a little hair on your chest.” Nature dutifully made me quite fashionable in that regard, but since that time, things have regrettably slid the other way. Beefy young men in fashion advertising display pectorals and abdominals as furless as a those of a baby. One recent print ad showed a pack of lovely women measuring every inch of a young man wearing only his undershorts and showing not a blade of hair below his perfectly formed cranium.
Would that real life were as equally correctable in Photoshop. Instead, off went this hirsute attorney in search of a more practical solution, which is how I ended up at Olga’s laser emporium. A slave to tradition, I decided to keep the hair on my chest, but I agreed to sacrifice all between the sternum and what Olga told me was my “bikini line.” She first shaved my abdomen, thereby defoliating that previously forested tract that no one had seen since I put on my bar mitzvah suit. Then she set her laser to work, and after a twelve-minute ordeal in which I felt like the target at a flame-thrower practice range, I stood up and had a look.
To my surprise, what had lay hidden under that vanquished mat of virility was, after daily workouts, a surprisingly pleasing set of washboard abs—not quite a six-pack, but something like a four-pack on its way toward picking up the two missing cans. There you go, I thought: a fashionable belly at last. The problem is that there are not that many venues in which a fashion lawyer gets to show how fashionably toned he has become. Going shirtless in the firm’s boardroom seemed not quite in keeping with our mission. I suppose I could arrive at a fashion show with my shirt as open as Keith Richards’, but that style just does not speak to me. I do not even swim topless anymore but wear a rash guard (swim shirt) with an SPF of 50. So I have done what women have done for millennia: I have suffered for beauty—beauty that must, in a guy’s case, remain both skin deep and out of view.
At least my doctor is pleased. As I lay on the examination table, she kneaded and pounded my abdomen as though hoping to strike oil and said, “Very tight. There are two possible explanations. Either you are finally exercising as I told you to do—or you have serious liver damage.”
In fashion, nothing worthwhile comes easy.
Credit: Alan Behr
Designers have been famously cautious not to offend men’s perceptions about masculinity. The old axiom that men will not buy clothes bearing the names of women led to some novel solutions. Jhane Barnes was born Jane Barnes, but by the time men had figured that out, they were sold on her clothes—even the many who assumed from the name that they were wearing clothes designed by a man. Kate Spade’s line for men came out as Jack Spade.
Then there are the brands that started for women and have migrated successfully to selling to men. Salvatore Ferragamo may have built a reputation as the shoemaker to the women of Hollywood, but my wife’s devotion to Salvatore Ferragamo handbags is mirrored by my policy that all my business shoes come in red boxes.
When it comes to individual styles, however, the crossover path is not always easy. Late in the last century, women started wearing fitted tights. That never caught on with men, even those with fantasies of playing Robin Hood. There was some initial hesitation by men, but after women had given up on stockings and started wearing beach sandals (flip-flops) around town and just going barefoot at home, men eventually followed along. I bought my first pair of flip-flops since my age was in single digits, and no sooner did I wear them out of my building, on a late-night milk errand, than I caught my doorman trying to do his best not to stare at my toes. It was a hot night and those toes did feel rather nicely chilled by the milk fridge’s chill, so I could see that the comfy factor was indeed in play. But at the end of the day, I just have to go with the obvious: light and delicate things like thong sandals may look correct on women—but on guys: you know, those black Ferragamo loafers I am never without are looking better than ever.
Credit: Alan Behr
Photo Credit: Salvatore Ferragamo
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In the service of consumer awareness, I have helped clients with event promotions ranging from setting up rub-down booths for aching feet at half marathons to participating in the closing off of Times Square for New Year’s Eve and the engagement of major talent to entertain the revelers. I was particularly amused, however, when Henry Poole & Co, the tailor shop that founded London’s Savile Row (back in 1846), alerted me to the closure of the Row for its one-day transformation into a pasture eighty meters long, populated by sixty squishy sheep and twenty-five anything-but-squishy male models, each of the latter in a bespoke outfit by one of the twenty-five participating tailors. For Savile Row Sheep Day (yes, big promotions need big names) on October 5 of this year, Henry Poole showed, on one of those big men, a made-for-the occasion three-piece suit made of a blue-gray 11-12 ounce Prince of Wales wool and cashmere blend. The sheep came as they were.
That is not the first time Savile Row has been disrupted for a special promotional event. As documented in the film Let It Be, on January 30, 1969, The Beatles gave their last public performance from the headquarters of their company at 3 Savile Row, creating a commotion that brought in the police and became part of the history of popular music.
Getting the famously phlegmatic London bobbies stirred up for the benefit of posterity was likely integral to the thinking behind The Beatles’ rooftop concert, but when fashion companies do big promotions—whether to let Shaun the Sheep and friends graze on a city street or to rent historic venues for fashion shows—they do not want legal troubles. Along with all the usual contractual complexities with vendors, models, transportation providers, venues and more, for big promotions, there typically are municipal permits, special insurance problems (Just what is the premium for coverage against damage by rampaging ruminants?), and often import/export and duty considerations, to name only a few of the additional legal concerns.
Big events are often borne of creativity at marketing and public relations companies and departments; but it is a good idea to bring in the lawyers well before a fashion company commits to move forward with such an event. Marketers are both inventive and parental, quickly falling in love with their creations, with the result that legal considerations can be put off to the last minute. That is why promotional lawyers are used to providing services in a rush. Under those conditions, even their best efforts may not be enough to prevent an exciting opportunity from becoming an expensive mistake due to missed deadlines for permits, hurried and failed attempts at gaining necessary consents and much more (and much worse). The simple rule of thumb is this: when you think big in a promotion, think legal. Before the big idea is a go, go to the lawyers and ask if it is possible and what it likely will cost to make it happen.
As for those sheep on Savile Row: someone did it all just right that day in October. The promotion went off as planned, the cops stayed away, everyone had a good time, and Henry Poole and the rest of the Row’s tailors got their message across, which was, “Gentlemen: wear wool and look smart.” We have to assume that, somewhere in London that night, an advertising and promotions lawyer slept soundly. He or she certainly deserved to.
Credit: Alan Behr
Photo Credit: Henry Poole & Co
A case that was decided last year by the New York Supreme Court, Kings County, illustrates the importance of protecting the confidentiality of proprietary supplier and manufacturing sources.
In this case, a wholesale distributor of off-price apparel engaged an employee to assist the distributor in sourcing merchandise from overseas manufacturers. The distributor and employee made a number of trips to a South American country where the distributor sourced merchandise through a business broker who provided introductions to local apparel factories.
After a few years, the employee left the distributor to work for a competitor that began to place orders for merchandise with these same factories through the same broker.
The distributor subsequently brought an action against the employee and the competitor for unfair competition claiming that the identity of the broker and associated factories constituted trade secrets, which the employee misappropriated for his own and the competitor’s benefit.
Under New York law, a former employee may generally solicit a business’s customers, so long as the employee is not bound by a non-compete agreement, does not solicit the customers while still employed by the business and does not rely on customer information that was wrongfully obtained or which constitutes a trade secret. The courts have applied a similar standard when evaluating whether the identity of a company’s suppliers may be treated as a trade secret, often also considering whether the company had exclusive arrangements with those suppliers.
In determining whether information is a trade secret, New York courts frequently apply a six factor analysis:
- the extent to which the information is known outside of the company;
- the extent to which it is known by employees and others involved in the business;
- the extent of measures taken by the company to guard the secrecy of the information;
- the value of the information to the company and its competitors;
- the amount of effort or money expended by the company in developing the information; and
- the ease or difficulty with which the information could be properly acquired or duplicated by others.
The court ultimately decided the action in favor of the employee and competitor, determining that the identity of the broker and the associated factories were not trade secrets. The distributor did not establish that the broker or the factories had promised to or did, in fact, sell exclusively to the distributor and did not show that the identities of the broker and the associated factories were confidential. The distributor also failed to provide evidence that it had undertaken great effort in discovering the factories, in establishing a business relationship with the broker or in keeping the identities of the parties secret.
The lesson here is that businesses that depend on key suppliers should not rely on trade secret protection alone to protect these relationships. Instead, they should take steps to identify as proprietary that information which they wish to protect and should enter into appropriately tailored non-compete and non-solicitation agreements with their employees that are designed to prevent them from disclosing or otherwise taking unfair advantage of such information of which they become aware during the course of their employment.
Credit: R. Brian Brodrick
Brian is a partner in Phillips Nizer’s Corporate Law and Securities & Private Placement Practices.
The bankruptcy and attempted reorganization of American Apparel demonstrate not just that fashion is a risky business but also that, in bad times as well as good, it brings into play some unique considerations. First among those is that fashion businesses tend to arise from the unique vision of one or a very few individuals. That is true as well for tech startups, but except for a few software geniuses (such as Mark Zuckerberg), entrepreneurial masters (such as Bill Gates) and brilliant marketers (such as Steve Jobs), once a tech business gets going, skilled replacements are relatively easy to find.
That is not the case when the founder and guiding light of a fashion business is also its chief designer. As even well-established brands have demonstrated, bringing in a new designer who understands a brand’s signature looks and who can add his or her own vision while somehow keeping all that fresh (and keeping loyal customers purchasing) is not an easy feat.
The situation at American Apparel was ironically even more complicated because much of the trouble started when its founder, Dov Charney, was forcibly removed. More of a businessman than the creator of a signature style (American Apparel was all about ever-cool basics made in the USA), he dominated the company. He made a failed effort to return; and while everyone involved focused attention on that, the business lost its vision and too many of its customers, and then slid into receivership. That might have happened anyway, but the disruptions caused by the long-running Charney episode may well have been the tipping point.
It all serves as a reminder that, in fashion, getting a clear and effective legal structure into place as early as possible, with understandable methods and procedures for personnel transitions and successions, could potentially be a business-saver. True, Ralph Lauren, that grand warrior for American gentlemanly style, simply and graciously stepped aside as CEO of his company, letting the business keep running, apparently seamlessly, from there. But legal planning is not about expecting the best; it is, unfortunately, about hoping for the best while planning for the worst. And when it comes to fashion and the people in fashion, that is nearly always a prudent way to go.
Credit: Alan Behr
We have heard that men are the new women, that menswear is growing faster than womenswear, a business and cultural phenomenon that has seemingly taken nearly everyone by surprise. We consider many reasons for that: social media and reality television have made men more aware of the potential power of good style; online dating places a premium on appearance (your make your first impression with photos and a few lines of self-congratulatory text); and there is nothing like a worldwide economic downturn to make a guy consider carefully what he has to wear in order to get and keep a job. It may be for those reasons that menswear designers are offering all sorts of novelties at fashion shows. They appear to be following much of the same strategy as has long been used for womenswear: show something exaggerated or controversial on the runway and, when the buyers come by right after, explain how all of that will be modified into saleable condition (which is to say, something people really will wear) as soon as orders are placed.
It is perhaps for that reason that, as I examine the photographs of menswear runway shows and the editorial pages of fashion magazines, I have had increasingly greater difficulty winning a game I call I Can Wear That. To win, I have to find a complete ensemble, as shown on a living model, that I would wear, head to foot, watch to cufflinks. I can only attribute my defeat at that form of solitaire to the creativity of designers. There are looks that critics call androgynous that I cannot imagine androgynous men would be willing to wear around town. There are floor-dragging coats paired with short pants, making the model look like a schoolboy who has stolen his father’s overcoat. I suppose it is good that designers are showing no fear of color; but I just have not seen too many men grabbing those chartreuse shirts and lilac pants from retail racks.
All of that is healthy, of course. Show a bit of flare and excess, and when it comes time to make a sale, tame it down to what the market will bear. We can go back to 1962. In that year, Rudi Gernreich had no sooner created the “monokini,” the topless bathing suit, than knockoffs appeared with attachable tops. (That was, at least, the explanation my mother gave me for the one my father, a lifelong garmento, had picked up for her at a Seventh Avenue showroom.)
As for my game: when going through WWD, GQ and other publications, I indeed rarely win now at I Can Wear That. But when I go into stores, the shelves and racks are filled with things I can wear and would gladly buy. So everyone must be doing something right, and the fashion pages are always useful for inspiration. Now let me remember—what kind of coat goes best with chino shorts…?
Credit: Alan Behr
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