Brooks Brothers at 200 – Part 1: Background

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At a time when the fashion press engages in a group hug with brands over how labels can stay viable in the digital age, it is fitting that we should pause to consider a brand that has been doing just fine, thank you, since James Monroe was president of the United States. Brooks Brothers, which celebrates its 200th anniversary this year, has had different owners and various designers (with Zac Posen now directing womenswear), but has adhered to a consistent philosophy that can be described in abstract terms as “wearable and confident American style.” Brooks Brothers can also be described, more explicitly, as one of the few places where, no matter what you buy, if the color and fit work, you can forget the term “fashion victim.” To celebrate its anniversary, the brand mounted its first show at Pitti Uomo in January. Sixty-one models (including eight women who made the term American style into a synonym for chic) were presented to the accompaniment of a full symphony orchestra; unusual for almost any show anywhere, every piece could have been worn out the door of the Palazzo Vecchio onto the streets of Florence (or New York, London or Tokyo).

As a branding lawyer, constancy in branding message and in legal protection are always on my mind. Managing that from the flagship at the corner of Madison Avenue and E. 44th Street in Manhattan may have been easy enough back when, if someone said he was going to Brooks Brothers, you just assumed that he meant going to that corner and into that store. Keeping consistency in message and legal protection became a bit more complicated when the brand expanded across the USA (eleven stores by the 1970s) and then, in 1979, to its first international location, in the prosperous Aoyama neighborhood of Tokyo. The challenges are global now, with the brand maintaining hundreds of stores in nearly fifty countries, and with a wholesale business that places Brooks Brothers products onto shelves and racks of many third-party retailers.

I sat down recently with Arthur Wayne, the vice president of global public relations at Brooks Brothers, in his office in the tower behind the company flagship, to gain some understanding on how it is done.

The first thing that became clear in speaking to Mr. Wayne is that Brooks Brothers adheres to the strategy (which I fully support in general and for fashion in particular) that a brand is its story made temporal. The Brooks Brothers story is the American experience. There are many examples, but consider just three outlined briefly by Mr. Wayne: when miners landed in New York from around the world and headed (one might say herded) west in 1849 during the gold rush, Brooks Brothers innovated, with the ready-made suit. No need to wait to be measured and return for fittings. Pick one off the table,* let it out or take it in, and off you went to California, well-dressed, with a pickaxe in hand. Then came the Oxford button-down shirt, which has been copied by nearly everyone trying to look American.** And I have gone into detail on these pages about why the stripes of American ties, led by Brooks Brothers, go from right to left instead of left to right, as do the British regimental ties of their inspiration.

In my next post, I will pick up with what brought the company to where it is now—and what it is doing to keep its brand on message.

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* Until comparatively recently in the company’s long history, men’s jackets were neatly folded and presented in stacks on counters.

** American style is about looking effortless; that does not mean it is easy to do. I shared with Mr. Wayne how I once knew the American representative of a renowned British shirtmaker. As he explained it to me, after several failed attempts on Jermyn Street to get that American collar right, he walked over to Madison & 44th, bought two Brooks Brothers button-down shirts off the shelf and sent them back to England with the message to please just copy this.

Credit:  Alan Behr


MoMA: Is Fashion Modern?

The Museum of Modern Art (MoMA) is currently hosting the exhibit, “Items: Is Fashion Modern?” So, what is modern? Back in 1944, the MoMA asked, in an exhibition titled, Is Clothing Modern? in the hope of inspiring museumgoers to, “reconsider their relationship with the clothing they wore.” Today, MoMA asks: Is fashion modern? to provoke thought about the world’s relationship with fashion and to examine how and why it is made. In this exhibition, we see fashion born out of creativity and necessity; created by man and machine. The museum’s elevation of both the evening gown and the flip flop illustrates society’s multifaceted relationship with fashion, clothing, and art.

The curators walk you through the history of fashion, using fashion as a lens through which to view and analyze culture and society. Upon entering, I was pleasantly surprised. The galleries, sparsely but carefully filled, teased visitors with vivid colors, sounds, textures, and interactive displays. The exhibit progresses chronologically and also practically, by starting with base layers like undergarments, switching to classics like the little black dress, then working toward wardrobe fundamentals such as pants and later on, accessories.

Underwear starts out not to be a simple thing. Brassieres, stockings, and then jumpsuits pique visitors to contemplate form, function, and aesthetic. Subsequently, the exhibition moves to khakis, trousers, and collared shirts. This casual wear showcase also highlights how pants have evolved for women. With images of a pants-clad Audrey Hepburn in Breakfast at Tiffany’s and Mary Tyler Moore in capris on the Dick Van Dyke Show in the 60’s, the exhibit’s wall labels provide gender-charged commentary on how pant suits became socially acceptable for women.

The exhibit moves forward to a survey of the quintessential little black dress. Just within the exploration of the little black dress, one can see the evolution of fabrics, design, class, and social custom. This collection contains a range of dresses from Christian Dior to Thierry Mugler; starting with a modest Chanel evening dress from 1925 and ending with the controversial, close-fitting Versace cocktail dress worn by Elizabeth Hurley in 1994. The exhibit even highlights the relationship between technology and fashion by including a 3-D printed dress designed via a form of classical mechanics and motion called, kinematics.

Next, fashion is studied as an extension of culture. The collection exalts prints, fabrics, and silhouettes from all over the world, showcasing an anthology of Indian saris, Cuban guayaberas, Ghanian gowns, Brazilian jumpers, and Dashikis inspired by Nigerian prints, yet made right in Harlem.

Flanking one side of the exhibition is a spotlight on men’s suits. The stylistic progression goes from the zoot suit to the power suit, and even a double-breasted pant suit by Ralph Lauren for women. The wide range of tailoring, fabric, and shape is also a reflection on style, age, and class.

After covering each major piece of clothing, the exhibit moves on to highlight accessories. What some may consider superfluous or merely decorative additions, the accessories prove to be staples on their own. This collection looks at show-stopping shoes, handbags, hats, furs, and jewelry. The curators even established a small homage to the famous Hermès Birkin bag and Alexander McQueen’s platform armadillo boots, as worn by Lady Gaga.

But wait: there’s more. The exhibition has small fashion asides where one can find a biker jacket derivative made from polymers and LED lighting, and a textile designed through a computer-programed knitting machine.

“Items: Is Fashion Modern?” is indeed a modern take on fashion. After examining the entire 111 items, it is impossible to walk away uninspired and unprovoked. The curators do an excellent job of covering a wide range of subject matter, addressing the fundamentals of fashion, and examining where fashion is purely aesthetic and less functional, yet nonetheless enthralling and important. The exhibition demonstrates the complexity of fashion, as it can serve as adornment, a reflection of culture, or counterculture. If modern is to reflect the present and recent times, then yes, fashion is modern.

The Museum of Modern Art exhibit, “Items: Is Fashion Modern?” runs through January 28, 2018. https://www.moma.org/calendar/exhibitions/1638

Credit:  Candace R. Arrington

Candace Arrington works in Phillips Nizer’s Intellectual Property, Corporate, Fashion, and Entertainment Law Practices.


Gemstones: The Complexity of Colors

I would like to highlight an interesting trend that has developed over the last ten years in the field of gemstone jewelry design and sales. An increasing number of women are joining the jewelry industry in sales and executive positions, as professional buyers for large firms, designers, bench jewelers, store owners and cutters.

In what has been a traditionally male-dominated industry (I know that may sound strange), this encouraging phenomenon has made me see things differently in terms of how I buy, sell and even cut precious stones.

Over ninety percent of gemstones in the marketplace have undergone color treatments to intensify the primary color. For example, such a treatment will make a pink sapphire more pink and less purple, and an aquamarine more blue, less gray-green.

Uniquely, I buy and cut only natural color gemstones. That is, the gems have not undergone any heat or irradiation treatments to alter or improve their color.

I have noticed a decided increase in female buyers as my clients. It occurs to me that men seem to be more focused on primary colors given off by a gemstone while more women are intrigued by undertones (or secondary colors).

The bluish purple undertone of a typical untreated pink sapphire is a feature that women often find extremely interesting. Men, however, quite often just want to see pink and only pink.

Simply put, more men tend not to appreciate or simply do not value the complexity of natural untreated gemstones the way women do. Subtle, yet mysterious, undertones are a captivating hallmark of untreated gemstones. Learning that aesthetic point of view from my increasingly female clientele and “retraining” my eyes over the past ten years has enabled me to better understand what women are seeing in gemstones and has been immensely helpful to me. It seems one can never stop learning, even when it comes to stones literally as old as the hills.

Credit:  Glenn Preus

Phillips Nizer would like to thank Glenn Preus for this blog post. Glenn is a gemstone cutter in Honolulu, Hawai’i. He can be reached via Instagram: @glennpreus


Legally Chic in Barcelona

Hotel El Palace (Barcelona) rooftop twilight | © Alan Behr

In the cosmopolitan city of Barcelona, several of us, including my colleague Alan Behr, gathered for a private fashion industry meeting at the exquisite Hotel El Palace. While sipping tea and sampling fine pastries, we heard brief presentations on important legal developments from around the world.

Owen Tse, a partner at Vivien Chan & Co. in Hong Kong, presented on the New Balance case before the Intermediate Court in the People’s Republic of China. The court ruled in favor of the Chinese company New Barlun, which New Balance had accused of selling infringing footwear. The court relied on the fact that New Barlun had filed the Chinese mark before New Balance had made an attempt. To add insult to injury, the court awarded the equivalent of US $15.8 million to New Barlun, which was subsequently reduced to the equivalent of approximately US $700,000 by the Appeals Court. Owen also reported an interesting fact—“Ivanka Trump” in Chinese was the subject of more than 300 trademark applications in the PRC since 2016.

In addition, the practice of using “shadow companies” to infringe the Chinese translation of well-known brand owner’s trademarks is on the rise in Hong Kong. Infringers promote themselves by claiming they have authorization or license from the shadow companies. Example: Pearl Bay vs. Peony Bay in English and Chinese.

From Amsterdam, Herwin Roerdink of Vondst Advocaten gave a presentation regarding fashion brand owners and European Union data protection regulations. Herwin discussed the issue of smart products, such as socks that collect running data of their wearers and golf shirts that track swings, all in connection with EU privacy regulations. Specifically, a new EU privacy law, GDPR, EU 2016/679, which will become effective on May 25, 2018, imposes heavier regulation and more obligations on data controllers and data processors, whether or not the data is processed in the EU. GDPR also applies to the processing of data of those in the EU by non-EU entities that offer goods and services that monitor behavior in the EU. Non-EU fashion brand owners who target EU customers with monitoring products will therefore be subject to the regulation.

Herwin also explained the differences between the approach of the Dutch data protection authority and the United States Federal Trade Commission regarding the permissibility of WiFi tracking by retailers. Although the Dutch decision was based on Dutch implementation of the EU Privacy Directive, which focuses on whether the processing is necessary to achieve the desired purpose, the FTC decision was based on balancing the concern for customer harm and the legitimate interests of the retailer.

From London, Roland Mallinson of Taylor Wessing updated us on the implications of Brexit to fashion IP, on the assumption that the United Kingdom will not leave the EU before March 2019. Roland predicted that existing European Union Trade Mark (EUTM) registrations will likely continue to be recognized in the UK. He posited that parallel filing in the EU and UK is not imperative now, especially if you are not yet using your mark in the UK. He expressed confidence that there will be some arrangement by which current EUTM trademarks and those being filed now will result in protection in the UK, from the current priority date; however, because nothing is for certain, Roland recommended that strategically key brands continue to file UK applications in parallel with any new EUTM applications. For existing UK and EUTM registrations, it does not automatically follow that a new UK application should be filed now – even for strategically key brands.

The discussion also focused on the practical issue of transferring 900,000 EUTM registrations to the UK system, a process made more complex by the fact that a fair number of the registrations were not filed in English. Some issues, like parallel imports and European design rights, have political sensitivities.

Finally, I made a presentation regarding the important Star Athletica case, which was decided by the US Supreme Court in March 2017. We have previously reported on that development in our blogs on March 22, 2017 and May 5, 2017.

In short, we had a very enjoyable and productive meeting. And as anyone who attends the INTA annual meeting knows, half the pleasure for us was being able to sit down while we networked with friends and colleagues.

Credit:  Monica P. McCabe

Thank you to Phillips Nizer law clerk Candace Arrington of our Corporate & Business Law and Intellectual Property Law Practices for providing assistance with the review and preparation of this blog post.


In the Fitting Room with the Thieves

Shopping with Big Sunglasses Woman Keeping a Secret

Whether you call it shoplifting or shrinkage and the people tasked with stopping it the house detectives or the asset protection department, and regardless of what new technology you put into place, if you are a retailer, stealing is a problem that will never go away. When I was in high school, back in New Orleans, I worked weekends and summers at the department store my family owned and operated (and long since shuttered). I got to see firsthand the extent of the problem—which was harder to track in those days before electronic inventory controls. The manager of my department was arrested for stealing a pair of Mickey Mouse suspenders from the warehouse. He had been collared by the four-man security team brought in to replace the aging and quite ineffective store detective. During a big three-day sale taking place over a long summer weekend, as the junior and surely least valuable member of our sales team, I was relegated to sitting in the men’s fitting room, watching for thieves. All I got for my trouble was the chance to alert security to the customer who thought that the fitting room stall belonged in the men’s bathroom and had used it accordingly. That incentivized me to petition for repatriation to the sales floor and, just to be sure my position did not revert, I became the top sales person of my department during the next three-day sale.

Jump some years ahead, and now I find myself working with clients in retail on the law of asset protection. There was the time I had to work with the manager and assistant manager of one department store branch that was being sued for assault and false imprisonment by an alleged shoplifter who claimed he had been injured in his apprehension. The plaintiff appeared at the first hearing on crutches, and justice being as slow as it is, by the time the second hearing came around, he was practically pole vaulting with the things, which his lawyer, who could now hardly catch up with him, obviously told him to keep using in an effort to garner sympathy and a favorable settlement.

It was frustrating to our client, but none of that has changed much. You still need to be sure that you work with counsel to know what you can and cannot do in pursuing, approaching and ultimately challenging a suspected shoplifter. There are rules about that, and they vary from state to state. Just as an example, in New York you need to show that the suspect took possession of the item with an intention to make off with it. If you are found purposefully trying to sneak out a T-shirt by wearing it, give your lawyer a call; but if you tuck the T-shirt under your arm while paying for something else and mistakenly head out with it, you are guilty only of absentmindedness.

As long as retailers work very hard to create demand for what they sell, and as long as objects of desire hang and lie in public view, shoplifting will be a problem. As with all other problems that are certain to occur, it is always best to have policies and procedures in place and to make sure that the individuals charged with being the first line of defense—the sales staff—are thoroughly briefed on what to do. It is prudent to have counsel and the security team conduct periodic joint seminars with sales and security personnel. As with everything else in the law, the proverbial ounce of prevention will alleviate the need for the more than typically expensive, when it comes to litigation, pound of cure.

Credit: Alan Behr


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