In September, 2017, LVMH and Kering jointly adopted “The Charter on the Working Relations with Fashion Models and Their Well-Being.” It was created following consultation with key external players, such as casting directors, stylists, models and modeling agencies. Intended to help improve working conditions for models, the charter seeks to apply standards of conduct to the signatory companies and to their external contractors, such as modeling agencies, worldwide. A monitoring committee will meet with brands regularly to assess compliance.Key provisions of the charter require compliance with the following:
- Cast only female models for adult clothing who are at least French size 34 (US size 2) and only male models who are at least French size 44 (US size 34).
- Require a valid medical certificate from each model, attesting to good health and ability to work.
- Have a dedicated psychologist or therapist at the models’ disposal during work hours.
- On the sometimes-difficult topic of nudity and semi-nudity, the charter is refreshingly frank: it will be allowed only with written consent of the model and parent/legal representative if under the age of eighteen. For all, there must be comfortable room temperatures and private changing zone, and the model may not be left alone with the photographer or other person connected with the production.
- No hiring of models under the age of sixteen for photoshoots or shows in which the model would be called upon to represent an adult and, for those models aged sixteen to eighteen, a restriction of work hours to 6:00 a.m. to 10:00 p.m.
- Provide food and drinks that comply with the models’ dietary needs. Alcohol is not permitted, with limited exceptions.
- Establishment of a grievance system (such as a hotline). Brands have the right to make unannounced inspections.
As leading multi-brand companies based in the world’s fashion capital, LVMH and Kering are positioned to make a global industry-wide impact with the charter. By extending enforcement by their brands to external contractors (such as modeling agencies) the companies are using their collective power potentially to cause change throughout the fashion business. LVMH and Kering have invited other brands to sign the charter. Antoine Arnault, a member of the LVMH board of directors and the CEO of its Berluti men’s footwear brand, has expressed his belief that, “[other brands] will have to comply because models will not accept being treated certain ways by [some] brands and another way with others.”
Within less than a year following the announcement of its adoption, the charter is bringing change throughout the fashion business by, in part, influencing others in the field to adopt similar measures to promote improved working conditions for models. ELLE and Version Fémina magazines signed onto the charter. Condé Nast and Tapestry Inc. – the parent company of Coach and Kate Spade – each released their own standards of conduct for models, and Elite Models is expected soon to follow.
Katie Grand, editor-in-chief of Love magazine, expressed to Women’s Wear Daily that learning about the LVMH/Kering Charter made her “mindful that models need to change in private.”
In February of this year, LVMH and Kering Group further demonstrated their commitment to the charter by launching www.wecareformodels.com, a website that is intended to provide models with access to advice from expert nutritionists, psychologists, and other professionals in the fields of mental and physical health.
Previously, the Council of Fashion Designers of America had implemented health initiatives and guidelines to promote wellness and healthier working environments for models. The initiatives were not about policing brands but were intended to raise awareness and promote education. The LVMH/Kering charter differs in that the companies have implemented the policy and are self-monitoring. But it is more: the charter does not function merely as a set of corporate guidelines but as rules of conduct for all participants in corporate projects in which models are involved. The founders of the charter have stated clearly that, if any external partner should fail to comply with the charter, they will sever their relationship with it.
Although the charter is not legislation, it is important to recognize that its medical certification requirement is in line with the EU labor laws for fashion models that were implemented in October 2017, only a month after the adoption of the charter. The charter’s age-specific rules for models under age 16 are in accordance with New York child performer laws that require special considerations for underage models, including restricted working hours, mandatory breaks, and school attendance obligations. In short, the charter is current on where the law has been headed internationally, and it is quite possible that showing compliance with the charter could have bearing on judicial thinking, particularly on questions of liability and in any potential damages awards, in future actions concerning treatment of models.
Will the charter create a new norm for the modeling industry? The fashion business has shown that, while styles change quickly, patterns of behavior generally change far more slowly; but for models, some change appears to be coming at last.
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 Osman Ahmed, A New Charter Aims to End Model Abuse: Will it Work?, The Business of Fashion (Sept. 7, 2017), https://www.businessoffashion.com/articles/intelligence/lvmh-kering-model-charter-will-it-work.
 Rosemary Feitelberg & Lisa Lockwood, Next Steps: How to Cure Fashion’s Model Scandal, Women’s Wear Daily (Mar. 26, 2018), http://wwd.com/fashion-news/fashion-features/fashion-reaction-french-law-skinny-models-10302035/.
 Nora Crotty, New York Signs Law Protecting Child Models’ Labor Rights, Fashionista (June 27, 2018), https://fashionista.com/2013/10/new-york-signs-law-protecting-child-models-labor-rights.
Credit: Gloria Kim
Gloria Kim begins her third year at the Fordham University School of Law in the fall of 2018. Gloria has worked at Ralph Lauren as a wholesale planner and at Louis Vuitton as a legal intern. She is an active participant in the school’s Fashion Law Institute and earned her Bachelor of Arts degree from the University of Virginia.
Earlier in this series of posts (here and here), I reported on my interview with Arthur Wayne, the vice president, global public relations of Brooks Brothers. We discussed how the brand maintains continuity throughout hundreds of points of sale (wholesale and retail). In business and legal terms, here is the short and simple version:
- Stylistic consistency creates trademark consistency. Brooks Brothers maintains uniformity of cut, pattern, SKUs and style names worldwide. I own suits and jackets in the 1818 line, which is the company’s standard, positioned between its premium Gold Fleece line and Red Fleece bridge line. My pieces are of Italian fabric, sewn, variously, in Italy, Thailand and the company-owned workrooms in Haverhill, Massachusetts. All bear the trademark 1818, all are in the slimmest of the company’s fits, which is branded Milano. As a customer, I know that, wherever I find Brooks Brothers in the world, I can put on an 1818 Milano jacket made in any of three continents and know it will fit just as do the ones in my suitcase. In legal terms: The more consistent the message, generally speaking, and the more clearly a trademark represents just one source of origin, the stronger will be that trademark.
- Control the message, but respect regional differences. Japanese customers much prefer the company’s products made in its US factories—which they view as a mark of authenticity. French customers, in contrast, want to experience the brand, but they care relatively little where items they buy are sourced. (Interestingly, offered Mr. Wayne in an aside, when foreign buyers visit, it is the Japanese men who typically have the best interpretation of “American traditional style.”) United States trademark law does not permit the registration of geographically descriptive marks, so from a legal point of view, where it is made is of no matter: if customers get that the brand is about the American experience (reinterpreted and, to my taste, noticeably improved, by Italian ownership), that is what matters most.
- As in the movies, story is everything to a brand. Marketers and lawyers do not always see eye-to-eye. Every business day, in multiple places around the world, marketing teams are presenting to their lawyers exciting new trademarks, only to hear the lawyers say that they are unavailable for use. On the importance of story for a fashion or luxury brand, however, there should be no disagreement. Just as the mere mention of Veuve Cliquot brings to mind the story of the taste and luxury of Champagne and the mention of Leica brings to mind the story of precise German optics, so does a reference to Brooks Brothers open a page on a story about the American experience—in style of dress and in style of living. When Ralph Waldo Emerson said, “A foolish consistency is the hobgoblin of little minds,” he omitted any reference to wise consistency. That is the path taken by Brooks Brothers and by other international brands that know that, from consistency comes the strength to endure and prosper in multiple territories, among multiple customer bases.
- Newness is the best tradition. “People think of us as a traditional brand,” said Mr. Wayne, “but our founder, Henry Sands Brooks, was a fashion guy—a dandy. Look at what followed: collars with buttons; readymade suits; pink shirts on men. All of these things were innovative in their time—probably even shocking to many.” Tradition, in other words, is what happens when innovation meets inheritable acceptance. And that is the best way a marketer, together with his or her lawyer, can build, expand and ultimately preserve a fashion brand.
Credit: Alan Behr
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In my last post, I offered some of the history of the Brooks Brothers brand provided to me by Arthur Wayne, Vice President, Global Public Relations, during a recent visit with him at the company’s headquarters in New York. Having been to Brooks Brothers stores from Milan to London and beyond, I asked if the styles, brand names and trademarks appurtenant to them were used consistently throughout the world.
“When Claudio Del Vecchio bought the company, in 2001,” explained Mr. Wayne about its Italian owner, “he already ‘got’ the brand. The first thing he did was undertake a comprehensive product review. Under its prior owners, the company wasn’t really looking in its own garden—for quality of construction, tailoring—the core elements of the brand.” Mr. Wayne noted that, in the mid-to late 90s, there was much talk that casual Friday would be the death of tailored clothing, and the result at Brooks Brothers was that too many items were inexpensively made—something that is possible to accomplish credibly with fast fashion but is not possible to do stylishly with most tailored clothing.
“Claudio approached the brand as a customer,” continued Mr. Wayne. “His thinking has always been, ‘If I feel this way about what I am seeing, others must, too.’ He brought back quality tailoring and made sure the stores have a consistent Brooks Brothers look. The review was a long process and not everything was changed, but the initiative made us ready for the next challenge: brands are now in their customers’ hands.”
That was elegantly put and it shows the current problem faced by all brands and their lawyers: a brand in its legal form is its portfolio of trademarks, along with other intellectual property rights. And a trademark is above all an identifier of source of origin. If you see the trademark COCA-COLA on a soda bottle, that means it comes from Coke, not Pepsi—and so on. If someone else uses your mark, you take legal action to prevent that or risk potentially losing control of the mark and its registrations.
But how do you accomplish that in the age of social media, when consumers get to rate a brand’s offerings down to individual products—and when the brand feels obligated to post negative consumer reviews of those products on the very website where it is trying to sell them—and when it must deal as well with influencers, who can influence whosoever they please, on their own terms? Those forces can alter the perception of where a brand stands, rather as the gravity of the sun bends the approaching light of a distant star, changing the perception of the position of that star. Brooks Brothers partners with influencers, and it features two of them—one American and the other Polish—in its anniversary edition of its house lifestyle magazine. It is all about what Mr. Wayne calls, “the importance of creating a dialogue with your customers. This is what matters to them.”
What is a fashion lawyer to do with all these new forces and new demands? In the third and final post in this series, we will consider some contemporary lessons for international branding.
Credit: Alan Behr
I have been fielding questions from the press and colleagues about the bankruptcy of Toys “R” Us and its challenge to stay in business after shutting many stores in the chain. A leading question, typically asked with evident nervousness and need for reassurance: “It couldn’t happen this way in the fashion business, could it?” The answer: it could and it has. Some points to consider:
The Toys “R” Us model was to put familiar, heavily advertised brands into large stores for one-stop toy and game shopping. That worked in part because children see toy advertisements and play with friends’ toys with such regularity that “shopping” is often simply a matter of picking up what they have requested (over and over) and then fending off enough impulse purchases at least to give the illusion of parental control over the process. Trust me on this: I have an eight-year-old.
And trust me on this as well: pushing a shopping cart through large, undifferentiated corridors, plucking brand-name toys off shelves, is not an adult-friendly experience. Contrast that to the flagship Hamleys shop, which has cleverly positioned itself on London’s Regent Street, in easy walking distance from both my tailor and shirtmaker. Eager, helpful people are constantly demonstrating products, which is how, on my latest visit, I got two wafer-thin model airplanes for £10 that broke up on first crash landing and a coin-trick magic set I haven’t quite got the hang of yet—though I’m working on it. Yet it was a fun visit, which is quite the point. Just as important for the chain, a large portion of its merchandise is private label, which makes part of what they sell both exclusive and retailer-branded. If you want it, that is, you have to go to Hamleys, and when you bring it home, the name on the product reminds you from whence it came.
Providing a quality in-store experience and building a brand through exclusivity and desirability are very much points for any fashion retailer to consider. There is no benefit in falling back on the familiar mantra: “We are working to enhance our presence online.” Consider what, if anything, is unique about the Toys “R” Us website that would bring you there first instead of to Amazon. A certain segment of the population still wants to walk into shops, and what you provide online, at least in the near term, will be seen as an extension of what you provide in-store. Private label is still largely a bricks and mortar play, and it is often a very necessary one to reinforce the power of a brand and to build and hold onto customer loyalty. Private label has so far not had the same impact on fashion websites as it has in-store, in fair part because it is quite challenging to recreate the kind of storytelling experience that the best store brands provide in real space. (Is there any doubt, when you are in an Hermès shop anywhere in the world, that you have entered the Hermès world—one of chic sophistication, style and even, around corners framed by carefully arranged displays, a touch of mystery?) A website can support that experience, but so far, at least, cannot fully replicate it.
So the lesson for fashion retailers is simple: make them want it, and make them want to come in to get it. Which is to say, the lesson is what you already knew. Major bankruptcies are like traffic accidents. You drive slowly by, saddened by the damage; and, although you surely already knew that driving safely is a must, the experience brings the message home with great force.
Credit: Alan Behr
Recently, the Federal Court of Appeals for the Ninth Circuit upheld an injunction issued for the benefit of members of the Kardashian family against their cosmetic products licensee.
The Kardashians had terminated the license agreement due to the licensee’s alleged failure to pay royalties, among other alleged breaches. The licensee continued to exploit the license and sell products bearing the Kardashian trademarks, asserting, among other things, that “the Kardashians’ termination of the license agreement was invalid because the Kardashians breached the license agreement first . . . .”
The district court found for the Kardashians, holding, unremarkably, that a licensee has but two options when faced with a breach of the license agreement by the licensor: “First, the licensee can consider the contract terminated and stop performance. Second, the licensee can instead continue making royalty payments under the license agreement, continue using the trademarks, and then sue for damages. Regardless, the licensee cannot both stop paying royalties but nevertheless continue using the trademark.”
Although the options presented to a licensee by the district court decision are seemingly reasonable, they can present real risk to the licensee. For example, if the licensee had made significant investments and engaged a large staff to support the licensed business, terminating the agreement and closing down the licensed business not only will put any number of people out of work without advance notice, but also may result in defaults under the licensee’s banking arrangements and the loss of its entire business, thus giving rise to consequential damages potentially far in excess of any award for actual damages to which the licensee may be found to be entitled. Under the district court decision, the licensee’s option in these circumstances would be to continue the licensed business and bring an action against the licensor for damages, with the attendant relationship issues potentially adversely affecting performance, while continuing to make royalty payments with no guaranty that the licensee’s damages can be recouped, even after years of expensive litigation.
There is another quite unremarkable statement in the decision, which, although not in any way undercutting the ruling, may give some guidance as to how a licensee may attempt to protect itself in circumstances like those that the Kardashian licensee alleged it was facing. The court wrote, “like all contracts, trademark license agreements are governed by general principals of contract law.”
Among the most wonderful aspects of our contract laws is that the parties can, in effect and with few limitations, create their own law as to their rights and obligations under almost any circumstances. Accordingly, a licensee familiar with the Kardashian case might look to create a contractual structure whereby it would not have to pay royalties in the event of a significant breach by the licensor or, more realistically, a contractual structure by which it would not have to chase the licensor, at great expense, to recoup royalty payments in order to continue to exploit a generally valuable license agreement.
It is not uncommon to see license agreements in which the licensor has included a right for the licensor to set off amounts due and owing to it by a licensee against any outstanding payment obligations it may have to the licensee. However, even if a licensor would be willing to make this provision bilateral, these provisions are objectively problematic because they cannot be reliably drafted to prevent with certainty a party from merely alleging that the other owes it money in order to trigger the clause (unless, of course, a claimant party is required first to obtain a final judgment as to the amount allegedly owed, which brings us back to the problems with option number two). A better and more objective protection would be to allow the licensee to put its payments of royalties into escrow, with an obligation to take some formal legal action in accordance with the license agreement’s arbitration or litigation provisions before, or reasonably soon after, it notifies the licensor that the escrow account has been established. Assuming that the licensee establishes in the proceeding that it is entitled to damages, the escrow fund, even if less than the damage award, will be available to be applied toward the satisfaction of the judgment. It also is possible that establishing an escrow account and making payments into the escrow account will help relieve at least some of the tensions arising from awkward efforts to work together while the parties are adversaries in court or in an arbitration and perhaps even salvage the relationship after the legal action has ended.
Credit: Jonathan R. Tillem
I once insisted to my colleagues that it really is nothing to write a blog post: you can do it while waiting in the checkout line at Whole Foods.* Although that has proven overly ambitious, I was indeed standing in that very line the other day when a customer laboriously explained to a cashier about how another market had developed biodegradable non-paper bags, how her cooperative apartment building simply disposed of the Whole Foods bags without recycling, and in general how unrealistic it was for Whole Foods to expect anything good to come out of its use of paper shopping bags. The cashier, a very young woman, clearly had not been expecting, on punching in that morning, to debate sustainability with a stranger; she took the woman’s payment and gently encouraged her to move on.
Why did the loquacious customer decide that a cashier was the right person to address shopping bag policy at a company with 91,000 employees? I reflect on that because I am sometimes approached by people in the fashion business in the hope that I will introduce them to others who can help them in their careers. Young designers want me to introduce them to retailers. Entrepreneurs at start-ups want help in meeting financiers, and financiers want me to introduce them to the owners of thriving businesses and distressed businesses. Sometimes, I can accommodate them, but because lawyers tend to rub elbows with other lawyers and with executives who need (I did not say want) to speak with lawyers, doing so is not commonplace for use. My contacts are therefore what you would expect from a fashion lawyer: people who have devoted at least part of their work lives to dealing with contracts, governmental filings and lawsuits.
There are many different areas of expertise and specialties in the fashion and luxury goods businesses. And there are also many layers of responsibility. We all know that, but when you want something enough, it is easy to forget—and to hope that whoever you can easily get hold of is the right person to meet. Before approaching an organization, it is always a good idea to learn as much about it as possible, first to know about what it wishes to reveal about itself, second to know what it expects next to achieve, and third, and perhaps most important, to know who is the gatekeeper for the topic you are hoping to bring to the fore. Your lawyer can sometimes indeed be a resource. We have access to databases and we do know useful people. So we may have the right contacts for you—or we may not; it all depends on what you want and on those old but eternally important variables: good timing and good luck.
We have come a long way in gaining quick access to information from the days when, at the insurance company where I once worked, the people in charge of investments made sure to own one share of every corporation listed on the New York Stock Exchange, just to be able to receive the annual report. But that information and so much more is now readily available online—which of course means you do not need anyone else to look for you, as long as you know where to look. It is when the devil arrives with his proverbial details that lawyers can sometimes help—as can accountants, consultants and all the other professionals who absorb the time and money of business people everywhere. It is just part of the game, but it is a game we should all know how to play.
* Because I know I will be asked, as was the case with this post, the best time to catch up with your blogging is while waiting for your eight-year-old to soak himself and everyone nearby in a water-gun fight at a very wet playground.
Credit: Alan Behr