Boys Gone Wild–Sometimes

New York, NY, USA - July 15, 2015: Models pose at the Gypsy Sport 'The Jade Helm Collection' presentation by Rio Uribe during New York Fashion Week: Men's S/S 2016 at Skylight Clarkson Sq, Manhattan

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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Designers Defending Their Names


If you are interested enough in fashion to be visiting this page, I cannot tell you anything new about Roy Halston Frowick, better known as Halston. He was unique in many ways, starting with the fact that he launched his career with a single piece: the pillbox hat that Jacqueline Kennedy wore to John F. Kennedy’s inauguration as president, in 1961. (The fact that Mrs. Kennedy was also wore a Halston pillbox while sitting in the car next to the president as he was assassinated, in Dallas, led to the style going out of fashion in the blink of an eye.) By 1983, Halston’s company, Halston Limited, was owned by Norton Simon, Inc. Unless Halston had agreed to all that at some point, the likely explanation was that there had been no form of what lawyers call a non-assignment clause in place in the relationship that Halston, the man, had set up with the owners of Halston, the brand. In any event, within about one year, Halston was no longer designing for Halston Limited. He died in 1990, a man without his own name in design. Once that disassociation occurred, Halston, the brand, which still exists, has a life of its own, and it has since changed hands seven times more.

Catherine Malandrino recently filed a lawsuit against Elie Tahari and others, claiming she was wrongfully deprived of rights under a deal by which she sold her brand (and, for all intents and purposes, her professional name) to a company controlled in part by Tahari, which employed her as its creative director. Malandrino had only minority representation on her new employer’s management committee. She alleges that her co-venturers and others routed around her in subsequent dealings, damaging the brand and failing to compensate her as agreed. Although the complaint is passionately composed, it does not directly address what appears to be the underlying issue: Malandrino and her representatives did not provide, in the agreements she signed, the kind of contractual protections that could have reduced or eliminated many of the alleged wrongs and that would have given her final say as to what was and was not a Catherine Malandrino creation.

On a happier note there is the long, circular tale of Joseph Abboud. His eponymous menswear line debuted in 1987. His name was registered as part of trademarks that he licensed to a joint venture in which he took an interest through a corporation he owned. He then sold off his equity interest and worked as a consultant to the company that now exclusively owned his name in the fashion business—until creative differences caused an abrupt. Abboud tried to start a new brand called “jaz,” making it known in the trade that he was the designer. In the lawsuit filed by the company that owned the Joseph Abboud trademarks, the court ruled, “Abboud is permanently enjoined and restricted from using her personal name to sell, market, or otherwise promote, goods, products, and services to the consuming public.” In all, a humiliating result for one of my favorite menswear designers. Several sales of branding rights and changes in price point later, man and brand were effectively reunited; in 2014, Abboud became chief creative director at Men’s Wearhouse, which is the current owner of the Joseph Abboud brand and trademarks.

And we must not forget that there are many success stories. Karl Lagerfeld is still a walking brand, regardless of whatever house for which he has already has served or may yet serve as designer. Ralph Lauren’s name is owned by his company, which is public and so owned by many shareholders—but he has set up everything quite nicely and is surely not losing sleep worrying about whether he will still be designing under his own name.

The message: every good designer is either a good business person or should work in close company with someone else who is just that—and every good business person watching over a designer’s name should have a lawyer nearby who knows what to do to keep the designer and his name permanently in each other’s company.

Next: we will show a bit of how that works.

Credit:  Alan Behr

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Immigration: “O” is for “Outstanding”


Times are tough for foreign designers in mid-career who seek to establish themselves in the United States to take advantage of the regional fashion markets in this vast country of ours.

When I was a young lawyer first introduced to the fashion world, the issue of immigration and nonresident visas for design personnel of foreign fashion houses was a no-brainer. The fashion industry at that time was organized quite differently from the way it is today. Each designer who achieved a certain level of renown was able to open his or her own company. The successful ones grew and as they did, additional design support was easily found. There were also substantial garment manufacturers based in Europe able to fill orders with products manufactured domestically. China as a market for chic apparel didn’t exist then.

The L Visa

In those days, the garment industry consisted of dozens of middle-market companies, each of which managed to create, manufacture and sell complete collections without the intervention of a corporate bureaucracy. There were no mega—luxury conglomerates. If the need was seen for design talent to come to the United States, typically to oversee the adaptation of European collections to American tastes, a fashion house would pluck one of its manager-level designers who would be sent to the States to manage local creative staff until the situation was resolved. The L visa for inter-company transfers of managerial personnel within a corporate group was tailor-made for this kind of situation.

The E-1 Treaty Trader Visa

In the LVMH’s of today, the creative functions are centralized in the same manner as sales and public relations. As a designer matures and starts to develop his or her own vision of a cohesive look that in their judgment could be the basis of a new fashion line, the option of finding a financial backer able to support the designer through the fabrication of prototypes sufficient to put together a basic show is a pipe-dream. Getting licensees to manufacture accessories is equally unlikely as the major players in the industry have tied them up with non-competition agreements. Without backers, it is impossible for fresh talent to start up their own business in the United States in compliance with the criteria of the E-1 treaty trader visa, the usual route enabling an entrepreneur to get a foot through the door of U.S. immigration laws.

The O Visa

I have learned that the solution that designers lacking financial resources have found as a way to get them past the border is the O visa. The O visa is intended for persons of exceptional skill who have a temporary need to be present in the United States and who are to be paid for their efforts here. This is the visa typically used for artists and athletes who have performances, tournaments and similar temporary and finite reasons to be here. The visits of O visa candidates are sponsored by the producers of a play or the league operating the athletic competition who require the foreign visitors presence across the border for the duration of the run of their play or until their team is eliminated from further rounds. Part of the application that must be submitted is the return ticket home, paid for by the sponsor.

Will unknown fashion designers in mid-career be able to prove to the satisfaction of the U.S. authorities that they have exceptional ability in their field? Will they find sponsors willing to give them a job of fixed duration and to buy them a ticket home as part of the deal? The potential success of the O visa route as it applies to as yet undiscovered design talent seems to be highly unlikely to this writer. Let us know if you are aware of any such person who has succeeded in obtaining an O visa admitting them to engage in the fashion business in the U.S. in any respect.

Credit: Stephen D. Kramer

Three Americans in Paris–a Tale of Heroism and Fashion

Francois Hollande, Alek Skarlatos, Jane Hartley, Spencer Stone and Anthony Sadler - French President, Francois Hollande receives US-France Ambassador, Jane Hartley and honorees attend a reception at Elysee Palace on August 24, 2015 in Paris, France. Spencer Stone, Anthony Sadler, Alek Skarlatos and Chris Norman are being awarded the Legion d'Honneur after overpowering the gunman, 25-year-old Moroccan, Ayoub El-Khazzani, on board a high-speed train after he opened fire on a Thalys train travelling from Amsterdam to Paris. El-Khazzani, who had a Kalashnikov, an automatic pistol and a box cutter, was arrested when the train stopped at the French town of Arras./picture alliance Photo by: Gisele Tellier/Geisler-Fotopress/picture-alliance/dpa/AP Images

Among all the words written about the three young Americans who charged and subdued a heavily armed terrorist aboard a high-speed train in France, preventing what could have been a massive loss of life, was the fact that each received the Legion of Honor, the highest decoration given by France, while wearing polo shirts and khakis. (The British businessman who assisted them put on a suit to accept his award and spoke to his hosts in French.) Even the country club casual attire (built on “basics,” as retailers explain it to us) had to be scrounged up on the quick for the young heroes by friends and associates. Their detour from the Netherlands to Paris having been a spur-of-the-moment decision, their luggage had contained the usual assortment of shorts and T-shirts of young American travelers going just about everywhere. In light of their selfless heroism, much of the sartorial commentary about the ceremony has been along the lines of charmed recognition of the informality of the heroes in contrast to the great formality usually present at such events, particularly at the Élysée Palace.

We should first put aside the obvious: when a guy in his twenties packs for a summer vacation with his pals, he does not typically fret whether he should stuff into his backpack clothes suitable to get married in, on the off chance that he might either (a) find a bride or (b) receive the Légion d’honneur from the president of France. Those are three brave young men, but even they do not claim to be omniscient.

The more important point is that fashion is indeed everywhere. There is no way to avoid it. Even those who insist they do not care about fashion or style and dress how they please in order to be as anti-fashion and anti-style as they can are making fashion and style choices by so doing. That is, choosing to show that you are not keeping up with fashion is, in itself, a fashion choice. The fact that the two uninjured Americans (one of the men had been badly cut up by the attacker) did not first sprint down the Rue Saint-Honoré and throw themselves at the mercy of the head fitter at the Hermès flagship, begging to be form-fitted into business suits in time to get their medals pinned to their chests by President François Hollande, was itself a fashion statement. It said, “Given what we managed to do, we just didn’t think anyone cared how we looked as long as we showed the courtesy of making an effort appropriate to the moment and behaved respectfully.” And that is exactly what they did.

If there are fashion rules to draw from what happened at the Élysée Palace, it is this:

  1. Military heroes wear uniforms.
  2. Superheroes wear costumes strange enough to remind and assure us that they are the stuff of fantasy and nonsense.
  3. Ordinary citizens who do acts of heroism can wear whatever the hell they please.

And bravo to our three brave young men for making that fashion statement for all the world to see.

Credit: Alan Behr

Photo Credit: Used by Permission – Gisele Tellier/Geisler-Fotopress/picture-alliance/dpa/AP Images

Patent Falls In Spiderman’s Web: Are You Paying Royalties Unnecessarily?


While the Supreme Court’s recent healthcare and marriage equality rulings garnered a lot of attention, there was another decision at the end of the Court’s term that may be more meaningful to the business of fashion – Kimble v. Marvel Entertainment, the Spiderman patent litigation. Steven Kimble secured a patent for a Spiderman toy that shot the character’s “webs” from a hand. Marvel, owner of the character, purchased the patent to resolve a claim of patent infringement, promising to pay royalties on sales of the toy.

The popularity of the toy outlived the twenty-year patent term. Under a fifty-year-old Supreme Court decision, the obligation to pay royalties under a contract ends when the patent term expires, even if the agreement contains no termination date. Court decisions have applied the same rule to copyright licenses and assignments.

The Spiderman case called for the Supreme Court to reconsider the rule and permit the continued collection of royalties as provided in the contract. Although conceding that the fifty-year-old case might have been wrongly decided, as a number of courts and commentators have noted, the Court declined the opportunity to overrule it. Instead, it advised that, if the rule is to be changed, it is up to Congress to do so. Spidey is now free to cast his web without writing any more checks.

The decision is a reminder to licensors that patent and copyright rights do not last forever. In contrast, trademarks last as long as they are used and protected and trade secrets last as long as their secrecy is maintained. Joining a license for patents and copyrights with related trademarks or trade secrets can be a good way to maintain royalties after the patents and copyrights have expired. Licensees, on the other hand, should periodically investigate whether they are paying royalties under patents or copyrights that may have expired.

Credit: Helene M. Freeman

Welcome to Designer Hell, No Name


The applied arts, including fashion, stand in service of utility. There is no l’art pour l’art (art for art’s sake) even if you are talented and even if you are French. A useful object made beautiful, fun or even compelling is still something you can use, and things that can be used are objets de commerce, first and foremost. That is one of the reasons, as we have discussed in these postings (and surely will again) that the law treats fashion, jewelry and accessory designs—and related objects such as perfume bottles and lipstick cases—differently from how it treats paintings, sculptures and photographs. All art follows commerce, and artists do not quit their day jobs if they are not commercially successful, but when it comes to fashion, commercial success remains rather the point. If you are a designer and do not believe that, ask your retailers and financial backers if they disagree.

The first and perhaps most personally compelling fact of that distinction between what the law considers design to be versus how it treats fine art is that, although the artist can never lose his name—there was only one artist who could paint a Pablo Picasso and only one artist who could chisel out a Michelangelo—it is possible for a designer to wake up one morning and find that, professionally, his name is no longer his. To his mother, he may always be, “My son, Martin, the designer,” but the clothes bearing his name might be designed by someone else—perhaps someone he does not know, or perhaps even someone whose work he finds indifferent or just plain terrible. Even worse, should he wish to continue designing clothes, he may have to do it under a different name.

The reason for that is because the name is not merely a name; it has become a brand. And brands can be sold, along with the trademarks that represent them, and the goodwill that those trademarks generate and perpetuate. (An artist’s name can also be his brand—but the art market has not yet accepted the idea that, say, Lucian Freud could have sold his name on retirement, for use in connection with fine art by Damien Hirst.) When designers sell their trademarks, therefore, they are, to the fashion world, effectively selling their names.

If the price is right, that may be a great idea. Sometimes, however, regrets follow. In posts to come, we will show what has happened and can yet happen when designers lose control of their own names.

Credit:  Alan Behr


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