As I have shared in two prior posts, I had the privilege of sitting down with the menswear authority, Alan Flusser, in his comfortable office inside his custom tailor shop in Manhattan, to hear his point of view on the status of men’s style. This being a legal blog, the conversation inevitably came around to what a lawyer should wear, and here again, Mr. Flusser was both precise and definite:
“I went to a closing on an apartment, and counsel for the other party showed up in a polo shirt and khakis. I’d never met him before, and I would hardly recommend that you come in looking like that, trying to show you have the know-how and authority to oversee a transaction well north of a million dollars. But that is the lay of the land today.”
“Is that advice for everyone or are you pointing to the legal profession when you say that?” I asked.
“Everybody could benefit from learning some of the fundamentals that go into putting together the basic elements of style in a way that makes the right impression. That is particularly true for a lawyer, who has to explain important things to people in a convincing manner. The kind of clothes he wears and—just as important—the way he wears those clothes can go a long way in terms of helping him present his case to his opponents, to a judge, and, indeed, to his clients. There’s a certain confidence that can be projected by a person who knows how to wear clothes correctly.”
“Are you arguing for tradition?” I asked. “When I was a boy, we were told that, by the time you and I would be sitting here, everyone would be dressed in something like the outfits on the original Star Trek series.
Mr. Flusser smiled. “I worked for Pierre Cardin in the 70s.” That was a name from my sartorial past. I recalled that the three first suits I bought as an adult, while then in college, bore the Pierre Cardin label. They were made in Latin America and had lapels wide enough to cause me to take flight if the winds were right—but such were the times. “Pierre Cardin was one of these very avant-garde designers,” continued Mr. Flusser, “who said that, by the turn of this century, everyone would be wearing jumpsuits to go to the moon. Since then, people have been attempting to uproot, upend or debunk the necessity for wearing a suit, dress shirt and tie, trying to replace that with something else. Look around. As far I see, that that’s been a complete failure.”
Which is to say, it is a lot harder for you to look inconsequential in a suit, dress shirt and necktie even if not entirely spot on, than in a polo shirt and khakis, even if done not half-bad. Just the same, as Mr. Flusser next observed, once you commit to making the effort, you should commit as well to making sure it succeeds: “Whatever you do, the question is, why go to all the trouble to get gussied up in this if it takes no more effort to put on clothing that fits and is correctly proportioned for you?”
I asked if there is a good role model who shows lawyers how to do it just right. That turned out to be another easy question:
“I have been writing about it for decades, but very few men know how to tie a tie and put it up into a collar and have it come out looking as good as it could—that is, the difference between looking powerful or not—or possibly making you look weaker. Where can you learn that? You either have to see it on another man or you have someone in the public eye espousing this kind of dress. If I had a moment to ask any question of former President Barack Obama, I would probably first ask him, ‘How did you learn to wear shirts that have the exact and perfect collar for someone of your size and height and face shape, and how did you learn to tie the necktie to go up into that and to make that presentation as perfect as it has ever been on any president?’ Clearly, somebody taught him that at some point because you don’t usually pick that up as a community organizer.”
In short, to my colleagues at the bar: your legal knowledge, skills and personality may take you far, but pick up Mr. Flusser’s books, see him personally, or hunt down someone else who knows how and is ready to show you the way. That may not carry the day for you in contract negotiations or in a summation before the jury—but it will almost certainly offer you just a bit more of an advantage than you otherwise have had. And no one who seriously wishes to make it in this difficult profession should lightly pass up such an opportunity.
Credit: Alan Behr
We would like to thank Alan Flusser for his gracious participation in our three-part series on fashion, style and the industry’s influence on today’s design aesthetic. | https://alanflusser.com/
See post…”Alan Flusser – Part 1: A Question of Balance”
I was discussing the history of style with Alan Flusser in his office on East 48th Street in Manhattan, a convivial nook that shares the floor with his showroom and workroom. I turned to a topic about which I knew, from Mr. Flusser’s informative writings, that he had much to say: how it is that the typical American businessman or professional man used to look so natty and how is it that his descendants came to look—rather as they now do.
“First of all,” Mr. Flusser told me, “in between the wars, you had a situation in which a lot of people couldn’t afford clothes. It was the Depression. On the other side of it, there were still a lot of wealthy people. And there was also Hollywood, and in Hollywood at the time, when moviemaking was at its zenith of popularity, you had great male leading actors whose job it was to project Hollywood glamour, not just on screen but in their social lives.”
Anyone so young as to wonder if celebrity worship started with iPhone apps and social media should read a good history of American popular culture to know what Mr. Flusser means. My mother, a spiritual child of the Golden Age of Hollywood, grew up hoping to copy every button and bow on her favorite stars and still sees actors as transcendent personalities. For men, however, as Mr. Flusser went on to note, the catalyst was a “confluence of male sartorial role models,” from British aristocrats, politicians and businessmen to those movie stars. Men were taking an interest in dressing well, in part due to those examples, which were regularly offered in the new media of film, picture magazines and, later, television.
“In Hollywood at the time,” continued Mr. Flusser,” you had about twenty men who individually set their own kind of style” and thereby marked the path for those millions interested in following. He noted in particular Cary Grant and Fred Astaire. “In terms of learning how to dress, there developed between the two world wars the kind of clothing that we wear today, soft clothing that you could move in comfortably—lounge clothing, it was called—not stiff and Victorian.” Indeed, although the modern business suit’s origins can be traced back to nineteenth-century military uniforms, it was the resulting lounge suit of British gentlemen that evolved into the contemporary international business suit. (If you do not believe that, put on a suit of the London cut, turn up the collar and pull the lapels toward each other. You will look just a bit like the Duke of Wellington.)
That is all well and good, but who in the public eye right now would a young man seek to emulate? Attention, Millennials, this one is for you: “I would be hard-pressed to come up with a single person,” said Mr. Flusser, a note of frustration overtaking what had been an assertive tone. He suggested George Clooney, who is not in his first youth, of course, but did not feel comfortable naming anyone else in entertainment.
As I now knew was his method, Mr. Flusser offered history: “In the 1960s, you had the Peacock Revolution. There was a rebellion against ‘the Establishment’ and the more traditional dress that people associated with their parents. From about 1968 until the 1980s, there was a void of good guidance on how men should dress. If you take the generation after that, you get pretty close to where we are today, and you find two complete generations of men who never had the benefit of having any kind of solid information on the elements of stylish dressing. By then, you had had a complete inversion. Instead of style being handed down from above, it bubbled up from below—from the street.” And street wear, as we know, makes its mark by aspirating toward a state of cool—a hard state to reach and an even harder one to maintain.
Where does that leave us now? “It’s a very confusing period of time in terms of trying to learn how to dress and come to terms with what you know about how to present yourself,” concluded Mr. Flusser. True enough, but at least, because of our conversation, I had come to understand why that is so.
Credit: Alan Behr
See post…”Alan Flusser – Part 1: A Question of Balance”
“One of the principles that I teach is that clothes should lead the eye of the viewer to the face of the person wearing the clothes. That’s particularly important in the legal profession, where you do a lot of communicating.” Hardly had I started my conversation with Alan Flusser, who is one of the premier custom tailors on this side of the Atlantic, when I was the recipient of such good advice. I had come to Mr. Flusser’s shop, in midtown Manhattan, with a three-button jacket he had made for me so long ago that I had missed a fitting on the morning of 9/11 (for quite obvious reasons). Although it had been worn often, Mr. Flusser and his team had just returned the altered piece to me looking as if it had left the workroom for the first time. Not only had it been recut for my late-blooming athletic physique (I had at long last learned to sit less and to pump more iron), but shorter and now boasting a pinched-in waist, it was also quite au courant. A hidden benefit of quality custom-tailoring is economy: every off-the-rack garment I owned back then has long ago been sent away.
With that good start behind me, I joined Mr. Flusser in the office of his shop. Mr. Flusser sat in one of his guest chairs, appearing at ease in an open-collared shirt, unbuttoned jacket and casual shoes minus socks. With my notes spread in front of me, I probably looked to him like a defense lawyer trying to impress a trial judge. He continued: “What is closest to the face is the dress shirt collar. You should look at it as a painting and a frame—your head is the painting and you are trying to give it a frame that complements your face but doesn’t distract from it. The criteria for making the decisions about that—the size of your chin and the shape of your head, for example—are not changeable or subject to fashion. So if you discover what kind of dress shirt collar best presents your face, and build on that, what you figure out will stay with you for the rest of your life.”
When I asked what was the most common collar mistake, his answer was immediate: “Most men wear dress shirt collars that are too small for their faces. If you are 5’10” or above, the likelihood is that you will be wearing a dress shirt that does not sit tall enough on your neck. Instead, the dress shirt decorates the bottom half of your neck, and if you add a necktie, it will look like a dead fish hanging around your neck. That has nothing to do with fashion. It only has to do with your own physiology. And it’s not about knowing how much you should pay for something. It costs no more to wear a shirt with a collar that is appropriate for you than not. If you don’t wish to spend a lot of money, but you understand what works for you, it will look just fine. All of this is just about knowledge.”
Feeling my moment of reckoning had come, I noted the obvious: that I have a large head and a wrestler’s neck. My shirt collar was tall enough, it turned out—but that was just the start of the conversation. Before I knew it, Mr. Flusser had unfastened my tie in order to relieve it of the Windsor knot I have been using since I was a first-year associate and retied it with a more rakish four in hand. “Much better,” he said, and then he replaced my machine-finished pocket square with a proper French-made, hand-rolled model. It all came together just so. And that is what style is really about: helping you look your best, not the best of someone seen in a magazine or on a social media page.
Credit: Alan Behr
Alan Flusser maintains his custom atelier at 3 East 48th Street in New York City. He is the author of “Dressing the Man: Mastering the Art of Permanent Fashion” and other works about men’s style. (www.alanflusser.com)
What You Need to Know About the Proposed New York State Legislature’s Fashion Sustainability and Social Accountability ActPosted: April 26, 2022
By Alan Behr
Alan Behr published a New York Law Journal article on the proposed New York State Legislature’s Fashion Sustainability and Social Accountability Act, a bill that stands to have a major impact on fashion companies operating in New York state as well as show hints of what may arise elsewhere.
The bill, if signed into law in its current form, would add a new §399-mm to the State’s General Business Law to require that any fashion company with more than $100 million in “annual worldwide gross receipts” disclose on its website “its environmental and social due diligence policies, processes and outcomes, including significant real or potential adverse environmental and social impacts and disclosure targets for prevention and improvement.”
The effect is something like an accountability value added tax, passing disclosure and remediation along the supply chain as goods mature from “raw material to final production.” A compliant company would have to address not merely the environmental impact issues implicit in the name of the bill but information on workforce wages of suppliers and the disclosing company’s “approach for incentivizing supplier performance on workers’ rights…”
The penalty for noncompliance would be a fine of up to two percent of annual global revenues of $450 million dollars or more—not mere profits but revenues, and not simply revenues in New York but total worldwide revenues, regardless of profitability. The New York State attorney general would be charged with enforcement, but private citizens could also start lawsuits. Fines paid would go to a new “community benefit fund” administered by the New York State Department of Environmental Conservation and would be used for “environmental benefit projects that directly and verifiably benefit environmental justice communities.
The intentions of the Fashion Sustainability and Social Accountability Act are clearly noble, but it is hard to read the text of the current bill without seeing it as a high-minded legislative scold. Read the full article for some key points.
By Alan Behr, Phillips Nizer Partner
In their short history of being the greatest advance in art since cave painting, NFTs have raised new questions of esthetics (which sometimes interest lawyers), new questions about the art market (which interests them now and then) as well as new questions of law (which interest them compulsively). As a member of the Copyright Society, the International Trademarks Association and the Association Internationale des Critiques d’Art, I periodically wade across all those streams. I will not, in my capacity as an art critic, go into my analysis of the artistic merit of the images associated with the NFTs that have become prominent so far—other than to share that I have no intention of buying any of them. As a lawyer, what has my interest now are new legal issues arising from the unique technical aspects of NFTs.
As is often reported, NFTs are part of the blockchain—which, like most lawyers, I understand somewhat less than I do the non-volatile memory of a BIOS chip, which I understand not at all. More particularly, the technology that powers NFTs was created as an add-on to the Ethereum cryptocurrency blockchain. A common misconception is that NFT technology is a new medium—as oil on canvas and fingerpaint on construction paper are artistic media. An NFT is actually an electronic certificate of ownership of, typically, a work of digital art that is available in any common format, such as a JPG, TIFF, or MP4. The certificate has been likened to a property deed: The NFT is not property as in the house you own but recognition of holding title to the house found in the document that certifies that you are the one and only owner. More narrowly for art, it is rather like a certificate of authenticity issued by the artist when selling physical art: you pass it along with the art to verify that the art is neither a forgery nor a duplicate.
The technical problem the NFT technology surmounts is that its certification function gives the buyer a mechanism to resolve a core problem plaguing digital art: as with just about any digital file, digital art can be copied with one hundred percent fidelity. A copy of an oil painting is a just copy, not the original; a sculpture chiseled to look like another is not the same sculpture but a variation of it, and so on. To build verifiable uniqueness and thereby identify the “original” of a digital work, something like the NFT had to come along. Anyone can still make a perfect copy of the underlying image for little or no cost, but the art market will see the NFT as the sole, true original.
And so, all manner of NFTs are being attempted as entrepreneurs and even a few artists properly definable as such try to make large sums of money from selling them. The art market being of far greater interest to the American public these days than art itself, you can see the reason for the buzz: contemporary art (the criticism of which is my core mission as an art critic) is an esthetic muddle, but nearly everyone loves to know when and how big money is made.
With that as a predicate, it had to happen that the NFT market would slide willingly into the market for fashion, and as every commercial lawyer knows, when new money enters an old market, litigation will follow. A lawsuit involving fashion and NFTs that is now in its early stages may help clarify what the law will consider an NFT to be. The case, Hermès v. Mason Rothschild, 22 cv 983 (S.D.N.Y.), was recently filed by Hermès International and an affiliate to halt the marketing and sale of NFTs of images of the brand’s signature Birkin handbag. Each of the defendant’s NFT images is unique but all of them depict bags recognizably in the shape of Birkins clad in virtual fur. To stop their sale, Hermès, which owns United States trademark registrations for both the word mark BIRKIN and the famous shape of the bag (that is, its trade dress), has sued for trademark infringement, trademark dilution and associated wrongs.
The defendant filed a motion to dismiss, claiming to be an artist whose “MetaBirkins” “comment on the fashion industry’s animal cruelty and the movement to find leather alternatives.” When you look at the marketing the defendant has done for his creations, that response appears cheeky rather than contemplative—but because anything can be art these days, it is hard to predict how that might resonate with the court.
The defendant’s motion says, as such motions must, that there is nothing to litigate because the facts as pleaded, even if taken as true, do not support a finding in favor of the plaintiffs. To my reading, however, the memorandum in support of the motion appears to raise more triable facts than the complaint itself, making me wonder what the defendant’s strategy might be at this point. The defendant’s legal argument is further complicated by an overreliance on an important case regarding the right of publicity, Rogers v. Grimaldi, 695 F. Supp. 112 (S.D.N.Y. 1988). That case concerned Ginger Rogers, who was a real actress and dancer, not an imaginary handbag that will not hold your hairbrush or car keys. What is possibly more interesting here is the defendant’s statement about what an NFT actually does from a technical point of view:
Nor does the fact that [defendant] is using a new technological mechanism to authenticate his art change the fact that he’s selling art. An NFT is merely code that points to a digital asset…. [T]he NFT is not the digital artwork; it is code that points to a place where the associated digital image can be found, and that authenticates the image.
An important implication of that argument would be that an NFT is not a copy as that term is understood under United States copyright law. There is indeed a line of cases in which courts tried to unravel whether a type of digital technology created an infringing copy of a work protected by copyright. A relatively early such case was Micro Star v.FormGen 154 F.3d 1107 (9th Cir. 1998), for which I served as head of the legal department for the parent company of the party made the defendant in a complaint for declaratory judgement. The plaintiff, Micro Star, argued that its disc incorporating user-made unique levels (i.e., battles) for play with the videogame DukeNukem 3D and sold in violation of the license, did not actually copy the artwork of the game. The argument was that the code in the level discs only contained digital instructions (in what were known as MAP files) for what pieces from the game’s art library were to be accessed to create the combat challenge played by a user. That argument did not prevail, and the disc was found to be infringing. Similar questions of whether actual, fixed expression had been copied and, if so, if the result was infringing, were central in a later Supreme Court copyright case. In American Broadcasting Cos., Inc. v. Aereo, Inc., 573 U.S. 431 (2014), the Supreme Court found that the use of individual, miniature antennas, each dedicated to a single program seen by a single subscriber (as opposed, for example, to a single large server streaming to many) did not overcome the fact that that a broadcast service was illegally performing “publicly” the works held under copyright by others. Although the defendant in Hermès may have raised the issue of the electronic function of NFTs in support of its trademark defense, it is worth considering where that position might lead should copyright become a core issue in the next NFT case.
When that technical issue is tucked for now into its appropriate conceptual corner, the trademark question in the Hermès case remains traditional whether the marketplace would be confused into believing that the NFT of a MetaBirkin originated with Hermès or if the presence on the market of the NFT or the underlying image would dilute the value of the BIRKIN word mark and Birkin handbag trade dress. Looking at it strictly from that point of view, it appears that the plaintiffs have made a compelling case in their complaint.
It is hard to conceive what might happen if the court allows the defendant to keep selling his virtual Birkins (or MetaBirkins, if that is really a distinction). Luxury brands have probably never played such a starring role in popular culture as they do today. They can only do so through the enjoyment of a legal monopoly over their brands—including the trademarks that identify them and the stories that they tell. At The RealReal store in downtown Manhattan, for instance, aspiring luxury consumers troll for secondhand, affordable examples of major luxury products. In the bathrooms, recorded voices coach enthroned shoppers on the correct pronunciation of names of major luxury brands. Through that kind of retailing, social media and all the other instruments of pop culture, luxury has morphed from a reference point for rarified prosperity to a locus of collective aspiration. To allow NFTs to pop up randomly with cagey digital versions of the products of those brands would appear to allow others to control, in part, the messaging of those brands. That would surely cause consumers to confuse the source of the brand’s products with the sources of those NFTs.
Just asking intuitively: if you saw an NFT of a Birkin bag, even a fuzzy one, would you not assume that Hermès was involved? If you did not, the only interest you might have in the image certified by the NFT would have to be for its esthetic value—that is, as proper art. If the artist really had confidence that he could make the artistic power of furry handbags into the driving force behind the commercialization of his vision, why would he bother snipping recognition (and profits) from a famous luxury brand? Would not any handbag, real or fictional, not do quite as well? The point should therefore not be whether MetaBirkins are represent real purses or not or whether they have artistic value or not; the point should be whether the market for the source of all this—real Birkin handbags—would be damaged.
By: Phillips Nizer Partners: Alan Behr, Charles LaPolla, Andrew Tunick and Intern: Yann Rimm
Those of you who remember New York City from the late 1970s do not need anyone to tell you that the City has changed drastically since then. Back when New York City experienced its all-time high crime rate that helped frighten away tourism (and residents), the City desperately needed help. Overheated municipal spending in prior years and other factors led to serious financial problems. In 1975, President Gerald Ford denied the federal assistance requested in order to stave off a potential filing by the city for bankruptcy. Two years later came one of several power blackouts to strike the city, but this one created opportunity for massive looting that resulted in 4,500 arrests.
At about that moment, however, the New York State Department of Economic Development (NYSDED) began its program to make the City more desirable as a place to live, work and visit. And that is how the I ❤ NY logo mark was born. It was designed for free by Milton Glaser, the graphic designer already famous for a Bob Dylan poster and many other works. He was recruited by William S. Doyle, the deputy commissioner of the New York State Department of Commerce. The design was an immediate success, helping keep the campaign going far longer than what was initially anticipated to be a duration of only a few months. Using a reference to New York City as the “Big Apple” dating from the 1920s, the New York Convention and Visitors Bureau, as it was then known, began again promoting the city as the “Big Apple”—and the revived nickname stuck.
By the time that the COVID-19 pandemic had disrupted travel everywhere, New York City had become the most-visited city in the United States and the eighth most visited in the world. According to NBC News, the Big Apple is also the world’s most photographed city.
Perhaps because the individual elements of the Glaser logo are common, it is a frequent misconception that the Glaser logo is in the public domain. However, the overall logo mark was in fact registered in 1989 by the NYSDED as a service mark in Class 35 for, “promoting the state of New York as a tourist attraction and enhancing its economic development.” But that has not stopped a large trade in knockoffs, even within major tourist centers in Manhattan.
There is some indication in media articles that NYSDED was lax in the past about preventing uses by others of the “I❤NY” logo mark. However, in recent years, the NYSDED has sent about two hundred cease-and-desist letters annually. Many of the alleged infringers claim to have not been aware that they were using a registered mark. In 2009, a coffeeshop owner who had “I [coffee cup] NY” tattooed onto his hand reproduced the image from the tattoo on his storefront. That earned him a cease-and-desist letter from the NYSDED, an action which is indicative of the aggressiveness with which the NYSDED has recently policed the marketplace in an effort to prevent what it believes are infringements of its logo. The NYSDED has also opposed several trademark applications by entities applying for the “I❤” symbol in combination with other place names such as Santa Barbara, San Francisco, New Orleans and New Jersey—to name a few.
Those accused of infringing the I❤NY logo may ask if it should remain a registered trademark or if it is now diluted to the point where it has lost its distinctiveness. On the other hand, in at least one trademark opposition proceeding, NYSDED has taken the position that the mark has become famous as a result of long-term exclusive use, advertising and promotion. If this position is upheld, it would help to blunt any claim that the “I❤NY” logo mark cannot be enforced against others who use “I❤” formative marks for goods or services unrelated to those for which NYSDED uses its logo mark. In such event, NYSDED could assert that another party’s mark dilutes the distinctiveness of the “I❤NY” logo and prevent others from using or applying for a similar mark even if the use of the other party’s mark has nothing to do with promoting tourism.
Although there is no doubt that the “I❤NY” logo has been widely exposed to the public, the question of its distinctiveness is nuanced: a mark is distinctive when the public readily accepts it as identifying a particular source.
In its notices of opposition against other “I❤” trademark applications, NYSDED has stated that I❤NY is synonymous with New York State. However, an issue remains whether a survey would support a claim that most people associate the logo with a single source of goods and services or simply as an expression of love for New York by the user of the logo.
Interestingly, the French have addressed an effort to register and claim exclusivity with respect to the designation I❤Paris. A French trademark registration for this designation was obtained by the company France Trading, which used the registration as the basis for opposing an application by Paris Wear Diffusion for the mark Paris Je t’❤ (which translates literally as Paris I❤you) for T-shirts. In its response, the applicant challenged the validity of the opposer’s registered mark as being generic and non-distinctive, and the Paris Court of Appeals agreed. The case ultimately made it to the highest French court, the Cour de cassation, where the opposer argued that the use of I❤Paris on the T-shirts was distinct enough because the T-shirts were labeled as products of France Trading. However, the court found that argument to be insufficient because the identifiers on the T-shirts did not readily identify the source at first glance. In other words, under the reasoning of the court, if the owner needed a label stating the source of the product to justify its distinctiveness, the logo did not fulfill the very purpose of trademark registration.
The reasoning of the French court is clearly not consistent with U.S. trademark law which authorizes the source of the goods and services to be unknown or anonymous. It is, however, consistent regarding its reluctance to protect merely ornamental marks. In particular, the French court noted that the targeted clientele of the I❤Paris T-shirts were mostly tourists visiting Paris and that when customers buy these clothing articles, they do not think, “Hey, look at me I am wearing an authentic France Trading” shirt but rather, “Hey, look: I made it to Paris.” The French court therefore found that “the average consumer will not perceive the logo as identifying a source but merely as decoration.” This finding is consistent with EU case law (see, Windsurfing v Boots, CJEU May 4th 1999, where the Court found that the name of a geographic location can be registered as a trademark so long as the public associates the mark with the owner and not the place) according to which, even if a mark looks worthy of registration on paper, it is ultimately the public perception that matters whether it can be protected as a trademark.
The chances of the same outcome ever happening in the United States with respect to NYSDED’s “I❤NY” logo mark is probably low considering its strong presumption of validity stemming from its registrations as well as NYSDED’s strong case for acquired distinctiveness. As a result, we can all continue to ❤ New York—within the limits of the law, of course.