Resolutions for the New Year—and a Thought About the Old

By: Alan Behr, Phillps Nizer Partner and Fashion Law Practice Chair

About 2020 we can only say what the videogame hero Duke Nukem would sometimes offer when things turned out badly for him: “This sucks.”  If you work for a company that rents evening attire, you have probably felt that more often than most by now; but if you work for a company that supplies Amazon with cardboard boxes, you may to be feeling just fine, thank you.

For 2021, many of us, whatever our employment, have resolved to make it a better one simply by going somewhere (just about anywhere) and, once there, doing something (just about anything).

For lawyers, the expectations are mixed.  Word on the street is that, now that families have spent so much more time with each other—sharing living and working quarters in a way not experienced on such a scale in the West since before the Industrial Revolution—there should be one clear result: divorce lawyers can expect a banner year.

Fashion lawyers are not the subject of any predictions made with similar certainty, but a few notes are worth considering when reviewing what to address with fashion counsel this year:

  • Perhaps your brand has undergone changes, such as if you have started making facemasks and PPE in workrooms once devoted to T-shirts, or if you have stopped producing ballgowns and switched to Zoom-friendly blouses.  If you intend for those new products to stay in your line, it is time to consider updating your trademark registrations to reflect those expanded uses of your marks.
  • Did you increase your online presence?  Great.  All the more reason to work with counsel to update the terms of service, privacy policy, returns and exchanges policy, and any other practices or procedures under which you operate your website.  Remember, your terms of service constitute a contract with your online visitors and purchasers, and they, along with the other “legals” on your site, should be written with the same care you would use for a license, lease, or any other legal agreement that you might conclude with what is now called a “wet” signature on the dotted line.
  • There are special requirements to consider carefully with counsel if you have started offering purchasers the opportunity to review your products and services on your own website.
  • Did you expand your relationships with influencers, endorsers and celebrities?  There are rules and recommended structures for conducting those relationships that should be discussed with counsel.
  • Needless to say, it is a good time to doublecheck your insurance coverage, the force majeure clauses in your contracts (as in, do you see the word pandemic anywhere?), and whether your lease allows you to sublet space you might not need if more members of your workforce will be working from home in whole or part going forward.
  • And the workforce itself: You can cause yourself needless legal uncertainties if your employment policies no longer reflect the realities of your workplace.  How will employees document the hours spent working from home?  And what happens now if you have provided all along that your work hours are, say, nine to five, with an hour for lunch, but your people working from home are routinely taking off midday to get the kids settled in with homework and playdates and then finishing up the workday after dinner?
  • What about your policies concerning office equipment for use in the home—everything from laptops to sewing machines for making muslin samples?  They may also need to be updated, along with protocols for internet and email security.

That is just a partial list.  The main thing to remember is simply this: whenever a business experiences changes as dramatic as those that the late and not lamented year 2020 brought on or accelerated, the legal circumstances under which the business operates very likely have changed as well.  A legal refresh is therefore a prudent move—one that should be made without delay.