This Way or That

Gentleman

A young lawyer walked by while working late, waving the striped tie he had just removed, announcing that, after 9:00 p.m., business casual was mandatory. European-born, my colleague’s tie had blue, white and green stripes angled downward from left to right (as seen by the wearer), in the classic British (and predominantly European) tradition. In Britain, the convention developed that, just as each clan in Scotland has its own tartan, each regiment, club and school would likely have its own, distinctive, diagonally striped tie.

On not quite as classic but by now traditional American ties, however, diagonal stripes run in the opposite direction, from right to left. There are various stories about why that is so. As with anything you can find on the Internet, you can discover much that is of interest, some of which might even prove to be true. You may learn, for instance, that the reason the ties slant in different directions is that European infantrymen shouldered their weapons differently from Americans and that their rifles ejected spent casings in an opposite direction. Those explanations are not only fogged by inaccuracy but bear little evidence of good fashion sense.

More credible is the claim by Brooks Brothers that it invented the American right to left downward slide on what it calls a Repp tie (freely admitting that an early spelling error caused it to get wrong the name of the French Rep ribbed silk fabric it used to make the ties). The idea was to bring American “roguish charm” to British tradition–an act that, as is often the case when Americans reference British traditions–acts as both homage and gentle satire. The British officers and gentlemen men who earned the right to wear regimental colors around their necks sometimes being quite sensitive about having earned the exclusive right to that privilege, Brooks Brothers reversed the direction of the stripe in an effort to soothe warrior sensitivities.

American schools have their Repp variations. My American university’s thick-striped tie, in navy blue and burgundy, is guaranteed to dull down almost any suit that goes with it.

The striped tie having now been commonplace for over a century, uncountable combinations of alternating stripe widths and colors have been used. A designer looking to protect his or her intellectual property rights in the patterns of ties may theoretically create a novel combination of colors and widths running in either direction–just enough to warrant a claim for copyright protection. Given the multiplicity of existing designs, that protection, if granted, would likely be a “thin copyright,” but in theory it could happen. The larger question is: why bother? Individual styles rarely last more than one season, after all. Would you really sue to protect the design, hoping the defendant does not dig into neckwear history to find something similar warn by officers of a British regiment since before it fought in the Battle of the Somme?

Each of those regimental, school and club ties identifies a source of origin–raising the possibility that a particular pattern of stripes can be protected as a trademark. As a practical matter, unless a stripe acquires such distinctiveness that the market accepts that it designates a specific source and so is not merely decorative, it is probably not protectable as a trademark. It is possible, again in theory, that a particular pattern of stripes could gain “secondary meaning.” That is, they now serve, through usage, advertising and the passage of time, as branding and devices not merely as pleasing patterns. If that should happen, is it indeed enough of a difference to prevent a claim of infringement to run the same pattern in the opposite direction, just as Brooks Brothers and other American makers did in order to distinguish their patterns from those British ties from which they freely borrowed both conventions and patterns? Much could depend on survey evidence of consumer habits and consumer awareness of the differences. That is another way of saying: if you did not know about all that before reading this post, the difference in the direction of the stripes probably is of no consequence to you; your response to the survey would therefore likely aid the plaintiff in a claim that simply changing the direction of the stripes did not make the defendant’s pattern less likely to cause infringing confusion.

That would support the generally held view that, when it comes to neckties, diagonal stripes, in whatever direction they run, are, in nearly all situations, open territory for designers. Within the quite narrow sartorial conventions of male business attire, however, there is not really all that much new that can likely be done with diagonal stripes in neckties. So, let us all celebrate an ongoing tradition and try not to worry too much about all this. A good striped tie will not necessarily be the one that a lawyer attempts to protect as intellectual property. It will, however, always be one that will work for him just about anywhere.

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We would like to thank Stephen Sidkin of Fox Williams LLP, London, UK, for providing the inspiration and background for this post.

Credit: Alan Behr


Brexiting the Future of Fashion

Women high heel shoes

Since the announcement of the result of the UK’s referendum about its future with the European Union so far as UK fashion is concerned, there has been no discernible change in the previous pattern of doing business. But the designs of business will change irrespective of what replaces the UK’s existing trade relationship with the EU.

Already there are forecasts of an increase in inflation for fashion and footwear prices. It follows that a supplier which fails to build into its contracts an inflation indexing provision is simply giving its customer an opportunity to make a greater margin on resale!

Correspondingly, UK fashion businesses sourcing clothes, footwear or accessories from overseas which do not include a currency conversion clause in their purchasing contracts are asking for trouble. The immediate fall in GBP on 24 June 2016 has been nowhere reversed.

But on the plus side, buying UK fashion assets – brands or trophy stores – in USD or pretty much any currency (excluding Bank of Toytown) has become a whole lot cheaper.

For those British fashion businesses not falling prey to overseas buyers, uncertainty can be expected to translate itself to an increasing use of pop ups and the taking of concessions in department stores.

And what of legal issues? The UK’s ‘affection’ for lawyers (”The first thing we do, let’s kill all the lawyers,” Henry VI, Part II, act IV, Scene II) is likely to grow. This is because whilst the referendum will not in itself have any immediate implications in legal – terms – it could take years before the UK exits the EU officially – good lawyers who look to try and achieve their clients business objectives will consider what the referendum means.

As such, can it be said that the decision to leave the EU has or will frustrate the purpose of a contract so making it impossible to perform the contract? Possibly. But the English courts have consistently been unimpressed by an argument that a contract is frustrated because it is more expensive to fulfil or more difficult to perform.

But then does the Brexit vote constitute an event of force majeure? Unlikely as it would be necessary either for the contract to expressly state it to be so or for it to be interpreted as falling within a more general force majeure category, such as the act or decision of a government body. However, this has still to be tested in the English courts.

Will English choice of law and English court jurisdiction clauses continue to be upheld in the English courts given that these are currently governed by EU regimes? For the time being – yes. But in the future?

Equally, how will the intellectual property rights of fashion brands fare? The EU trade mark and the EU design, both pan European rights will almost certainly cease to cover the UK and this will result in a need to secure separate rights in the UK. The conversion of existing EU IP rights to national UK rights is likely but on what basis this will be implemented and whether it will involve re-examination of the rights is unclear.

The enforcement of IP rights may also throw up some interesting issues. What happens to a pan European injunction granted in favour of a non-UK company pre-Brexit? Does it automatically cover the UK post-Brexit or will it need to be registered in the UK to continue in place? This has the potential for re-opening a number of hard won disputes by designers and fashion brands alike.

Finally, what about grey imports? The UK could become a haven for parallel imports and worse if any transitional provisions on the protection of EU trade marks leave gaps in protection, the rights could be left unprotected if the fashion brand does not already have a UK trade mark in place.

A few years ago a successful telecoms company – Orange – claimed, “The future’s bright. The future’s Orange.” Today the future is grey as we try and see through an interesting period in the history of the UK.

Credit: Stephen Sidkin and Simon Bennett | Guest Post*

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*The Fashion Law Practice appreciates this guest post from Fox Williams LLP (London, UK).

Stephen Sidkin is a commercial law partner and Simon Bennett an intellectual property law partner at Fox Williams. (www.foxwilliams.com; www.fashionlaw.co.uk) | © Fox Williams LLP 2016


Remembering Bill Cunningham

Bill Cunningham MCNY Winter Ball 02-25-15

The term fashion photographer typically brings to mind a specialist who works on assignment for advertisements or editorials and who brings to each shoot enough equipment to light a stadium and enough digital photographic gear to document a war. Bill Cunningham, who died on Saturday at the age of 87, did it all differently and in so doing became the essential visual chronicler of fashion in the USA.

Bill worked for The New York Times, but there is no external evidence that he took direct orders from editors—or that he deferred to the wishes of designers, subjects or anyone else. His method was to go around Manhattan on a bicycle, wearing a purposefully utilitarian and unfashionable outfit: blue French worker’s jacket, khakis and sneakers. At charity benefits and other social goings on—which is where I usually ran into him—he would switch into something black, not to be fashionable, but to blend in, rather like a stalking ninja—which, photographically, is rather the role liked to fill. His camera was typically an obsolescent (to a photojournalist) 35mm film model, and I never saw him trouble himself to carry more than one lens. He was balletic in his movements, turning, twisting, weaving and sometimes seeming to float among chatting socialites, popping off at what interested him. He was all business: if you called out, “Hi, Bill,” you were lucky to get a nod and a smile in response before he seemingly had slipped under the dress of the grandly frocked blonde next to you and emerged unseen to snap one just like her a few paces beyond.

The protocol was to pretend you did not see him even if you did, even as you silently pleaded with the gods of fashion that you had worn something worthy of Bill’s attention. (As a middle-aged man in a Henry Poole dinner jacket, I never held any such illusions.) The payoff was to have your picture in The New York Times, most often in one of the short videos Bill filed, narrated in his typically avuncular style—his high voice effusive with enthusiasm at trends and fads, some of them not known to almost anyone until he announced their ascendance.

Bill was no photographic stylist. As long as the image made his point about what was being worn, it was good enough for him. And because his eye for fashion was so unfailing, it made no matter. As Anna Wintour, the editor-in-chief of Vogue, frequently acknowledged, “We all dressed for Bill.”

If Bill photographed you, by all means, accept the honor and cherish it. Under law, you have no right to compensation for it: if he snapped your image at a benefit or on the street, you had no expectation of privacy, and so he did not need the one thing he never appeared to have concerned himself to get: a model release. Sometimes people claim that, in some published photograph or another, they were made to look bad and so try build a case around that. With Bill Cunningham, sorry: he would only photograph you if he thought you looked fantastically unique or simply fantastic. If you did look bad or (almost as unsettling) commonplace, he just passed you by. Conversely, if you managed to photograph him at work, as I did for my series of photographs of the Upper East Side party scene Naked at the Ball (the picture is above), he did not care—just as long as you did not get in his way when it was his turn.

Bill Cunningham was indeed one of a kind. The fashion world will miss him.

Credit: Alan Behr

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Photo Credit: Photograph Copyright © 2015 by Alan Behr


Seeing With Your Third Eye

Because almost everybody wears glasses of some kind, part of the pathway of the ascent of a designer will quite often include an eyewear line. Personal optics is a field in which design must coexist with the demands of mechanics, durability and, for vision eyewear, medical requirements. With those few exceptions that inevitably come along, if what you find fits, does the job and, just maybe makes you look cool or at least not uncool–you will generally be content.

Of course, there are unique eyewear designs, but intellectual property law is tough on those who claim design rights for functional objects. Patent protection is reserved for the kind of innovation that rises to the level of the better mousetrap–meaning, by metaphor, that the new trap indeed should catch mice in a way not previously practiced or commonly anticipated. For the non-functional design elements of eyewear, protection can sometimes be obtained by design patent, copyright and either a trademark or trade dress. (Trade dress protection on the features of an object of any kind, rather than the packaging it came in, is a challenge for a different discussion.) There are particular requirements for each form of protection, meaning it is possible that one style of eyewear may qualify for one form of protection, for more than one form or for none at all.

By way of some exaggeration for a point, should you wish to protect a new eyewear design, you might have a credible chance of having the law support your claim if it were for sunglasses with not two but three lenses. That is to say, try designing frames on which a third, completely useless lens would be placed smack in the middle, over the bridge, to shade an imaginary third eye. To improve your chances, across the top of the frames place an original, melancholic relief illustrating a tragic moment from Longfellow’s “The Wreck of the Hesperus.” Along each temple add a declaratory statement such as: “Some People Will do Anything for Attention.” I am not going to speculate on your likely sales of that item during the fall-winter season, but some elements may prove to be protectable, as may a combination of elements.

This is not to suggest that you have to go quite that far to obtain rights for eyewear. All exaggeration aside, I have been quite successful doing so over the years for more mundane but far more elegant original variations on eyewear construction and design. And I have been able to defend those elements against infringement. The point is that, for something as common as glasses, whether for reading, vision or protection against the sun, you have to be inventive to come up with something strongly protectable. When you do, you would be well-advised to consult with your attorney about what elements, alone or in combination, can be protected by copyright, design patent, trademark or trade dress. You do not need to add the third lens to make that happen. You simply need to know enough to ask your lawyers whether what you have created is legally protectable, as well as being, of course, something both functional and beautiful.

Credit: Alan Behr


The Fashion Law Blog Turns TWO Today!

Fashion Industry Law Blog 2nd Anniversary (5-19-16)

Wow, time does fly fast!

THE FASHION INDUSTRY LAW BLOG IS CELEBRATING TWO YEARS!

On May 19, 2014, our Fashion Practice launched The Fashion Industry Law Blog. Two years and 72 posts later, we are widely read and re-posted. We hope you have signed up to receive our posts in your inbox automatically as they are published* or have visited our site from time-to-time.

During the last two years, we have published posts related to copyrights and trademarks, licensing, real estate, labor and employment and notable cases of interest to the fashion and luxury goods communities. We have also published posts classified as “general musings” — light commentary about the goings-on in fashion that may be hip, trendy or controversial.

We will continue to share timely posts targeted to designers, senior executives, entrepreneurs, in-house counsel, fashionistas and fashionistos.

We would be nothing without our readership, so, “Thank you” from all of us who have shared our thinking with you in these past two busy and exciting years for the fashion industry.

Please consider sharing The Fashion Industry Law Blog with those in the industry and others who may enjoy it.

Thank you for reading!
The Fashion Law Team at Phillips Nizer LLP

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Let Us All Cheer On The Supreme Court Of The United States

Supreme Court Of The United States of America

Every autumn, at my high school in New Orleans, for many, education was made to stand in line behind football. Ordinarily, in the heat and humidity of The Big Easy, any kind of activity beyond that needed to populate bars and strip clubs was considered unnecessary and even dangerous. (The older brother of a good friend died of heat stroke from playing high school football.)

And yet football, that proud exception to the rule, was worshiped every autumn. If the players were the priests of this brawny faith, what did that make the cheerleaders? The nuns? For their habits, the girls wore blue and yellow uniforms that were both comfortable and amenable to much athleticism, the requirements for the job being lots of jumping, pom-pom pushing and the occasional lift and twist into a fully inverted position. The garments were not all that successful in wicking away moisture, and the girls made quite an effort to maintain the required posture of irrepressible enthusiasm—while battling cascading perspiration.

That comes to mind as we consider that the Supreme Court has just agreed to hear an appeal from a copyright case about cheerleader uniforms: Varsity Brands, Inc. et al., v. Star Athletica, LLC. The Supreme Court rarely accepts copyright cases—it will accept one every few years—and barely will the Cheerleaders Uniformdecision have been announced before a cascade of articles by professors, lawyers, law students and the lay press will appear to interpret it and opine on its implications for the freedom of expression and the business of expression.

As the case currently stands, the Court of Appeals for the Sixth Circuit, in an appeal from a district court in western Tennessee, has ruled that simple designs on cheerleading uniforms consisting largely of “stripes, chevrons, zigzags, and colorblocks” are protectable by copyright. The court noted the basic rule, which we have discussed on these pages, that, “the Copyright Act protects fabric designs, but not dress designs.” The court went on to say, “Because we believe that the graphic features of Varsity’s cheerleading-uniform designs are more like fabric design than dress design, we hold that they are protectable subject matter under the Copyright Act…as pictorial, graphic, or sculptural works.” Functionality, such as wicking away all that perspiration, proved not to be a consideration for the court.

The court also rejected the argument of the defendant that the designs in question simply represented by the cheerleading uniform should be unprotected. There are just so many ways to make a uniform for an adolescent girl look like she is a cheerleader by the uniform alone—without, that is, making her shake her pompoms until you get the point. Although there may indeed be characteristics common to most cheerleading uniforms, those stripes, chevrons, zigzags and colorblocks, when sewn into a dress, were sufficiently unique as to warrant protection as a copyrightable design.

What the Supreme Court will be reviewing is quite specific: the standard employed by the court in determining how to separate (only conceptually because it cannot be removed physically in these fashion cases), a two-dimensional design from the functional garment on which it is placed in order to examine whether it is protectable by copyright. The lower court previously examined nine such standards (or “tests,” as they are often called) that have been floated or actually used and then went on to adopt one of its own invention, formed around five questions it asked itself.

The adage that the Supreme Court does not accept cases in order to affirm them may possibly apply here, but with its own tenth test now on the books (by the Sixth Circuit’s reckoning), it also seems quite possible that we will either be seeing the embrace of one of the prior nine or will be presented with an eleventh that will potentially replace all its predecessors nationwide.

And that, in short, throws open for speculation whether, in applying the test the Supreme Court will enunciate, the lower courts will still hold that uniform designs such as those at issue in this particular case are subject to copyright protection. Whatever the outcome on that point, the general rule does not appear in any way in danger: at least for the purposes of copyright, in the USA, copying a dress pattern (but not necessarily the pattern of the fabric itself) is largely permissible. The rest, as in so much about both fashion and law, is all about the details.

Credit: Alan Behr

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