#Influencers?

Social media influencer asking followers to like and subscribe

What do the Special Prosecutor and the New York State Attorney General have in common? If you answered fake social media accounts and social media bots inflating followers, likes, tweets and retweets, you would be correct.

At the end of January, 2019, Attorney General Letitia James announced she had reached a settlement with Devumi LLC, which she described as “the first in the country” to find that selling fake followers and likes on social media is illegal deception and using stolen identities from real people is illegal impersonation. The Attorney General’s investigation began under James’ predecessor in response to an article posted online by The New York Times on January 27, 2018, entitled “The Follower Factory”.  That article is the best source to understand the underlying facts.

Devumi operated a business through which individuals who wished to appear more popular and influential could purchase views on YouTube, plays on SoundCloud, endorsements on LinkedIn, as well as followers, likes and retweets on Twitter and other social media platforms. According to the Times, Devumi’s customers included the model Kathy Ireland, the former pro-football player Ray Lewis and even the Treasury Secretary’s wife. Engagement with the platforms was effected by using computer operated fake accounts, generally referred to as “bots”. In some instances, the social media personas of real people were “cloned” to create multiple accounts in multiple languages to create thousands of other accounts used to promote products or services, so-called “sock puppet” accounts. According to the Times, Devumi supplied customers with over 200 million followers, using 3.5 million accounts.

Reaction to the article was swift and resulted in Devumi ceasing operations when the publicity “caused a major decline in its sales”, according to the Attorney General. But Devumi is hardly the only entity or individual conducting similar questionable operations. A simple search for “Buy Followers” on Google will lead to links for many offering followers or likes for sale. The search is so common that Google has pre-programmed questions and answers related to the search as well as related searches targeted to specific social media platforms.

Fraud and deception related to influence on social media platforms are not limited to purchasing followers and likes. According to an article posed on-line by The Atlantic in December 2018, wanna-be professional “influencers” are also feigning sponsorship deals on-line to convince brands of their credibility as influencers—what the article aptly calls “faking it until you make it”.

While many athletes and performers have entered into lucrative endorsement deals with brands for many years, the influence they sell has been earned through a record of actual accomplishment in their professional fields. Roger Federer, for example, can endorse coffee machines and watches because he justly has earned fame based on long years of actual accomplishment playing professional tennis. The same cannot necessarily be said of professional “influencers” whose only claim to fame is an Instagram following that may or may not have been manufactured. So, when it comes to social media “influencers”, the watch word should be: let the buyer beware.

Credit:  Helene M. Freeman


A tale of red soles

Much has been said and written about Christian Louboutin’s iconic red sole brand. It has sparked endless debates about trademark law in various courts around the world, including in the U.S., France, Switzerland, and most recently at the EU Court of Justice.

Christian Louboutin began selling his high-heeled red-soled women’s shoes in the early nineties. The red soles gradually became a signature brand, somewhat comparable to the famous Burberry check pattern. The creator’s idea starts as a mere decorative design, just like any fashion design. But over the years, it gradually becomes a brand in itself because the public begins to perceive it as a source identifier even without any concurrent word mark on the product. Burberry registered its design as a two-dimensional trademark around the world; it recently sued Target in the U.S. for selling scarves with a similar design. As has been the practice of Burberry over the years, that is a trademark claim, not a copyright claim—which would present greater challenges to Burberry under U.S. law.

Back to Louboutin’s red soles: The United States Court of Appeals for the Second Circuit ruled in 2012 that Louboutin owns a valid trademark for his red sole shoe design. Louboutin had taken Yves Saint Laurent to court for trademark infringement. The red sole trademark was deemed inherently distinctive, Louboutin having given ample evidence that the trademark had acquired secondary meaning. Those words sound like music for the fashion brand owner and its lawyers because it means that the court rewards years of investments in sales, advertising and free publicity. (As the court duly noted, Louboutin shoes are popular items to wear when walking red carpet events in the entertainment industry.) Louboutin’s victory was unfortunately limited to the court having confirmed the validity of the trademark; the court also ruled that the same trademark registration could not be invoked against shoes – such as those sold by YSL – that are monochrome red, covering the insole, outsole, heel and upper part.

The U.S. thereby paved the way for Louboutin, which is, after all, a French brand. A long-awaited judgment in the European Union was recently rendered by the EU Court of Justice. This time, it was the Dutch discounter Van Haren that was selling red-soled women’s shoes. The court held, after a long debate, that a red sole applied on the sole of a shoe can be a valid trademark in the EU. Under pre-2018 EU law, the shape of an object that “gives substantial value” to the product itself could not be registered as a trademark. (An example would be the distinctive shape of the Perrier bottle.) The court that the color red, as applied to a shoe, was not as a “shape,” as Van Haren had asserted; after all, Louboutin had not sought to register a shoe but merely a color applied at a certain location on shoes. Following the EU court’s guidance, the District Court in the Netherlands that had referred the issue will now ban the sale of Van Haren’s shoes throughout the European Union.

The Louboutin trademark registration

A crucial takeaway from this case is the reward given for the smart way in which the trademark had been registered. In many trademark systems, the registrant is allowed to specify its two- or three-dimensional object with a brief description. Louboutin’s lawyers had wisely specified the filing as follows: “The mark consists of the color red (Pantone 18‑1663TP) applied to the sole of a shoe as shown (the contour of the shoe is not part of the trade mark but is intended to show the positioning of the mark).”

That victory may not last very long, however. EU trademark law was recently amended, with the effect that not only “shapes” but also “other characteristics” giving substantial value to the product may be barred from trademark registration. This change in the law opens a new can of worms: in particular, it remains to be seen whether pre-2018 trademarks, such as the one owned by Louboutin, can be invalidated on the basis of the new law.

Credit:  Diederik Stols | Guest Post

Phillips Nizer would like to thank Diederik Stols for the contribution of this post to the Fashion Industry Law Blog.  Diederik is a partner at the law firm BOEKX Advocaten in The Netherlands where he specializes in intellectual property, media and entertainment and e-business. (http://www.boekx.nl/en/)


Textiles and Tariffs

Just as fashion designers and retailers have been struggling to adapt to changing consumer demands, they now must face a new battle: a trade war.

Back in May, the White House announced its plan to impose tariffs on $50 billion of Chinese goods in the hope of pressuring China to stop alleged unfair trade practices and intellectual property infringement. After the U.S. Trade Representative, Robert E. Lighthizer, released the final list of goods subject to the new tariffs, China responded with tariffs of its own on U.S. goods. Upping the ante in July, the U.S. next threatened to impose a second round of levies, resulting in 25% aggregate tariffs on an additional $200 billion of Chinese goods. Once again, China hit back with more tariffs of its own.

Many economists have warned that the effect of a prolonged trade war between China and the U.S. will ultimately increase prices for American consumers and will damage U.S. businesses. Those working in the fashion industry are likely to agree. The May round of tariffs placed on Chinese imports, which covered a range of industrial, agricultural, and medical goods, left the fashion industry relatively unscathed. But the next round of tariffs, initially rumored to include textiles, handbags and suitcases, is likely to hit designers, retailers and, ultimately, the American shopper.

Following the U.S. threats made in July, Mr. Lighthizer agreed to hold a hearing to discuss market opposition to the proposed tariffs. In attendance at the hearing, held in August, were more than 350 stakeholders, including the Council of Fashion Designers of America, the American Apparel & Footwear Association and the Accessories Council.

To say that the American apparel industry relies on Chinese manufacturing may be an understatement. Kathryn Hopkins of Women’s Wear Daily (WWD) has noted that “China is vitally important to the industry with government data showing the U.S. imported $27 billion worth of apparel from the country last year, accounting for 34 percent of all apparel imports. That is more apparel than was imported from any other country, dwarfing second-place Vietnam at $12 billion.”

Concerned about impending tariffs, Edward Rosenfeld, the CEO of Steve Madden, told WWD: “We and others will certainly try to pass on a good chunk of this to the consumer in the form of higher retail prices.” Steve Madden is also looking to move its handbag manufacturing from China to Cambodia in response to the higher duties.

National Retail Federation President and CEO, Matthew Shay, told WWD: “This round of tariffs amount[s] to doubling down on the recklessness of imposing trade policy that will hurt U.S. families and workers more than they will hurt China – it’s two-and-a-half times the amount already imposed.”

Smaller businesses are particularly vulnerable to the proposed levies. Anne Harper, the CEO of OMG Accessories (annual sales: approximately $2 million), expressed her concern for the impending tariffs, stating: “I can’t just absorb that percentage…. The bread and butter of my business is selling to retailers, so that’s a big challenge. Q4 is where we ship all of our holiday goods. If the 10 percent comes into effect right before the goods ship from China, we’re subject to that extra 10 percent so it represents hundreds of thousands of dollars for my business. It’s basically a loss.”

On August 26, 2018, China filed a formal dispute with the World Trade Organization (WTO), alleging that the U.S. tariffs violate WTO rules.

On September 17, 2018, the White House made good on its warnings in July, confirming that tariffs of 10% would be placed on $200 billion worth of Chinese imports – ranging from silk to handbags. China promptly responded again, stating it would impose its own tariffs, of 5% to 10%, on $60 billion worth of U.S. goods. Meanwhile, the U.S. has threatened to increase tariffs on Chinese goods to 25% total on January 1, 2019, unless the two countries can conclude a trade deal.

Is there an endgame in sight? At this point, there are more questions than answers. The White House is slated to share more information following its September 17th announcement. One can only wait for the next episode of Textiles and Tariffs.

Credit:  Candace Arrington


An American in Paris

Greg Kessler
Rodarte S/S 2018 Paris Haute Couture Week July 2017

Looking back on Paris Fashion Week 2018, it is fun to reflect on the undeniable allure of Paris. Maybe it is the Parisian lights. Maybe it is because it is the City of Love. But there is something that attracts Francophiles from all over the world. A long-time fashion hub, Paris has been winning the hearts of more and more American fashion designers. Traditionally, New York Fashion Week is the reference mark for American design. Yet in just the past year, American designers Rodarte, Proenza Schouler, Thom Browne, and Joseph Altuzarra have opted to show their collections in Paris instead.

All of the Americans in Paris cited creativity as the major reason for relocating their spring and fall shows to Paris. Prior to Rodarte’s Paris Haute Couture Week debut last summer, co-founder Laura Mulleavy told The New York Times’s Elizabeth Paton: “I like being part of a new situation.” Co-founder Kate Mulleavy expanded:

“Ultimately a process should fuel creativity…France treats fashion as art; it just isn’t like that in America. Just spending time in [Paris], being part of it, is a reminder that enjoying new experiences fuels your best ideas and designs. Your imagination can totally come alive.”

Nevertheless, new opportunities also bring new legal issues. The initial question regarding work in France often is: Will I need visas or work permits for my American staff in order to show my collection in Paris? The good news: since 2016, if you are working in France for three months or less for the purpose of putting on a trade show, an art exhibition, or a fashion show, you need neither visas nor work permits.

Also, keeping in mind that French law emphasizes employee well-being, France requires its foreign employers to have documentation on file with the French counterpart to the United States Social Security Administration.

France and the United States have a reciprocal agreement whereby time spent working in France is considered eligible for social security and future benefits, like retirement, disability, and survivor’s insurance, in the United States. US employers must file a social security form for each employee working abroad. However, those benefits (as with so many others) do not apply to independent contractors. Therefore, those make-up artists, hairstylists, and public relations personnel employed by others but who are “hired out” by designers for shows must have their own full-time employers file social security forms for them.

Before starting work in France, an American employer transferring employees temporarily must file a declaration of workplace safety with the office for the International Posting of Workers in France, also known as Prestation de Services Internationales en France (SIPSI). Upon such filing, SIPSI will alert the French authorities responsible for inspecting the posting locations of foreign employees to examine the proposed fashion show site. Unlike the multiple social security forms required by an employer in the US, only one SIPSI filing is needed per employer, per location.

Much as in the critically acclaimed movie, as an American in Paris you will want to spend your free time eating baguettes, sightseeing, taking pictures, creating memories, and perhaps falling in love. It therefore would be wise to consult counsel and to address the business and legal issues in advance so that, once the fashion show has been completed, you will be able devote your time to drinking wine, eating cheese, and indulging in the many facets of French culture.

Greg Kessler
Rodarte S/S 2018 Paris Haute Couture Week July 2017

Credit: Candace R. Arrington

Photo Credit: Greg Kessler


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.


Bikinis and Copyright

The beaches of summer remind us that it is no disrespect for any of us to confess that most people do not look their best in swimwear and that those who do probably would look great in just about anything. Simply, the more the body is revealed, the more the aesthetic duties that are commonly undertaken by fashion are left to uncovered skin. Call it a triumph of artifice over nature, but for most of us, more clothing, rather than less clothing, even on the beach, is often a good thing. Fashion may make the great-looking come across even greater, but it is often a turning point, in the direction of great, for the rest of us in how we present ourselves to the world.

My colleagues and I have been writing and speaking quite a bit this year about the Star Athletica case—the Supreme Court decision that turned cheerleader uniforms into the biggest issue in fashion law in years. (Law is made by the cases actually brought, and this one just happened to be about uniforms worn by cheerleaders, but by its potential impact, you might well imagine the clothes were couture evening wear.) If nothing else, the case reaffirmed (that is, it did not change) the fact that, in the USA, anything functional in fashion cannot be protected by copyright registration (or with a design patent). When applied to swimwear, which typically represents about the minimum that the law allows any of us to wear in public, whatever precious square inches of cloth are involved almost always serve some kind of function. Finding something protectable in what is there can involve examining decorative clasps, closures and add-ons—but minimalism is the essence of swimsuit design, and such design elaborations are quite rare. That leaves for examination whatever small amount of fabric is actually in use.

As we have noted in these pages before, fabric patterns are protectable, and here, Star Athletica may be helpful in providing guidance. The Supreme Court has now told us that we need only look at a fabric pattern laid flat (in reality or imagination) to view it as we would any two-dimensional artwork to determine if it is original enough to be protectable by copyright. The shape into which it is cut—as swim trunks or a bikini, for example—is irrelevant. That is good news for fabric designers. It confirms that it does not matter how little of the design is there to see: if it is original and visible, it is theoretically protectable.

During the 4th of July weekend, I heard a young man compliment another, his tennis partner, on baggy swim trunks and a matching baseball hat—both made of blue cloth filled with an exaggerated white pattern that looked like multiple slash marks. At a pool the day before, a woman was similarly complimented for a black bikini that had small but intricate white designs only on the cloth that just about covered her right hip and left breast. If any of that is original, it may well be protectable.

Does that mean it is getting harder for a fashion company to know if a fabric being offered to it for use in garments is potentially infringing on the rights of others? Does it mean you have to worry about some design that would not fill the space that could be occupied by a chocolate-chip cookie? Unfortunately, that is likely the case. Where that next takes us is for the courts to decide—but not for now. Summer is here and many of those people you will see on the beach are copyright lawyers and judges, putting much of this behind them until fall.

Credit: Alan Behr