Category: Womenswear

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Business Law Intellectual Property Licensing Menswear Transactions Womenswear

Designers Defending Their Names

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If you are interested enough in fashion to be visiting this page, I cannot tell you anything new about Roy Halston Frowick, better known as Halston. He was unique in many ways, starting with the fact that he launched his career with a single piece: the pillbox hat that Jacqueline Kennedy wore to John F. Kennedy’s inauguration as president, in 1961. (The fact that Mrs. Kennedy was also wore a Halston pillbox while sitting in the car next to the president as he was assassinated, in Dallas, led to the style going out of fashion in the blink of an eye.) By 1983, Halston’s company, Halston Limited, was owned by Norton Simon, Inc. Unless Halston had agreed to all that at some point, the likely explanation was that there had been no form of what lawyers call a non-assignment clause in place in the relationship that Halston, the man, had set up with the owners of Halston, the brand. In any event, within about one year, Halston was no longer designing for Halston Limited. He died in 1990, a man without his own name in design. Once that disassociation occurred, Halston, the brand, which still exists, has a life of its own, and it has since changed hands seven times more.

Catherine Malandrino recently filed a lawsuit against Elie Tahari and others, claiming she was wrongfully deprived of rights under a deal by which she sold her brand (and, for all intents and purposes, her professional name) to a company controlled in part by Tahari, which employed her as its creative director. Malandrino had only minority representation on her new employer’s management committee. She alleges that her co-venturers and others routed around her in subsequent dealings, damaging the brand and failing to compensate her as agreed. Although the complaint is passionately composed, it does not directly address what appears to be the underlying issue: Malandrino and her representatives did not provide, in the agreements she signed, the kind of contractual protections that could have reduced or eliminated many of the alleged wrongs and that would have given her final say as to what was and was not a Catherine Malandrino creation.

On a happier note there is the long, circular tale of Joseph Abboud. His eponymous menswear line debuted in 1987. His name was registered as part of trademarks that he licensed to a joint venture in which he took an interest through a corporation he owned. He then sold off his equity interest and worked as a consultant to the company that now exclusively owned his name in the fashion business—until creative differences caused an abrupt. Abboud tried to start a new brand called “jaz,” making it known in the trade that he was the designer. In the lawsuit filed by the company that owned the Joseph Abboud trademarks, the court ruled, “Abboud is permanently enjoined and restricted from using her personal name to sell, market, or otherwise promote, goods, products, and services to the consuming public.” In all, a humiliating result for one of my favorite menswear designers. Several sales of branding rights and changes in price point later, man and brand were effectively reunited; in 2014, Abboud became chief creative director at Men’s Wearhouse, which is the current owner of the Joseph Abboud brand and trademarks.

And we must not forget that there are many success stories. Karl Lagerfeld is still a walking brand, regardless of whatever house for which he has already has served or may yet serve as designer. Ralph Lauren’s name is owned by his company, which is public and so owned by many shareholders—but he has set up everything quite nicely and is surely not losing sleep worrying about whether he will still be designing under his own name.

The message: every good designer is either a good business person or should work in close company with someone else who is just that—and every good business person watching over a designer’s name should have a lawyer nearby who knows what to do to keep the designer and his name permanently in each other’s company.

Next: we will show a bit of how that works.

Credit:  Alan Behr

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Accessories Business Law Intellectual Property Menswear Womenswear

Welcome to Designer Hell, No Name

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The applied arts, including fashion, stand in service of utility. There is no l’art pour l’art (art for art’s sake) even if you are talented and even if you are French. A useful object made beautiful, fun or even compelling is still something you can use, and things that can be used are objets de commerce, first and foremost. That is one of the reasons, as we have discussed in these postings (and surely will again) that the law treats fashion, jewelry and accessory designs—and related objects such as perfume bottles and lipstick cases—differently from how it treats paintings, sculptures and photographs. All art follows commerce, and artists do not quit their day jobs if they are not commercially successful, but when it comes to fashion, commercial success remains rather the point. If you are a designer and do not believe that, ask your retailers and financial backers if they disagree.

The first and perhaps most personally compelling fact of that distinction between what the law considers design to be versus how it treats fine art is that, although the artist can never lose his name—there was only one artist who could paint a Pablo Picasso and only one artist who could chisel out a Michelangelo—it is possible for a designer to wake up one morning and find that, professionally, his name is no longer his. To his mother, he may always be, “My son, Martin, the designer,” but the clothes bearing his name might be designed by someone else—perhaps someone he does not know, or perhaps even someone whose work he finds indifferent or just plain terrible. Even worse, should he wish to continue designing clothes, he may have to do it under a different name.

The reason for that is because the name is not merely a name; it has become a brand. And brands can be sold, along with the trademarks that represent them, and the goodwill that those trademarks generate and perpetuate. (An artist’s name can also be his brand—but the art market has not yet accepted the idea that, say, Lucian Freud could have sold his name on retirement, for use in connection with fine art by Damien Hirst.) When designers sell their trademarks, therefore, they are, to the fashion world, effectively selling their names.

If the price is right, that may be a great idea. Sometimes, however, regrets follow. In posts to come, we will show what has happened and can yet happen when designers lose control of their own names.

Credit:  Alan Behr

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General / Musings Womenswear

Those Empty Young Eyes

young elegant fashion model staring into camera

Recently, in American Photo, the photographer Robert Polidori reflected on the things he does not like about fashion photography: “One is the psychological stance. Eyes are the window to the soul, or at least to the psychological state. In the great majority of fashion photography in the past, say, 40 to 50 years, they have zombielike eyes. They look at the viewer-or at the photographer, who is the metaphor for the viewer-to-be—like, ‘I’m not looking at you. I do not value you.’ There’s a sense of denial that runs through it. I always wondered, why does denial sell clothes?”

As both a fashion lawyer and as a photographer, that touched a nerve with me. That empty stare of models in both advertising and editorial shoots has been a staple of fashion photography for about as long as Polidori suggests. It goes back at least as far as the “Sighs and Whispers” lingerie brochure photographed for Bloomingdale’s in 1976 by Guy Bourdin. Immediately controversial, it featured models looking lovely and catatonic in their perfect underwear. (I actually have a copy of that small but groundbreaking piece stored safely somewhere.)

The alternative to the blank eyes is the downright threatening “go thither” stare—as if the beautiful woman is either daring you to admire her and her clothes or pitying you for hoping ever to match her. As your basic straight and clueless guy (adjectives that, I am reliably told, are redundant in context), I also have to ask for what reason any of that sells clothes to women. (If anyone knows, please email us the answer, and we will consider it for future posts.)

I look at the women in fashion publications, and I reflect now on how completely different they are from those in publications aimed at straight and clueless guys. Take any well-done fashion editorial piece and compare it with say, the Playmate of the Month pictorial. Three messages are forcefully presented to women: First, to appeal to men, you do not need to spend all that much on clothes; indeed, if ever there were an illustration of the principle of less is more, here it is. Second, you do not have to be all that thin; the women in men’s magazines illustrate what evolutionary biologists have long been saying: whether they know it or not (probably not), men seek mates who have sufficient body fat to carry a pregnancy to term. The third thing you notice is that it really does pay to smile and to look interested in the guy who is looking you over. (Come on, admit it: your Mom told you that too, right?)

We get it that fashion photos for women’s apparel are not directed at men. Maybe that helps explain why we remain so clueless when it comes to choosing gifts for women. As to what our magazines say back to women, do we really feel comfortable sending the message that, no matter the season or what is showing on the runways, nothing equals the effect of a red thong and a pair of stilettos? And for evening, accessorize that with an engaging smile? I suspect women are no more interested in getting that message than men are prepared to understand why those lean and mean girls in fashion photographs appeal to potential customers. So much about romance will just continue to remain a mystery to us all.

Credit: Alan Behr

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Accessories Childrenswear Footwear General / Musings Menswear Womenswear

Many Happy Returns

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Over the years, retailers have liberalized their returns policies. I have been offered thirty days, ninety days, sometimes one hundred eighty days in which to receive forgiveness if I should change my mind. I have even been quietly assured that, if I sign up as a preferred customer, the returns privilege is open-ended, which I suppose means that you can bring back your bar mitzvah suit after you wear it a second time for your retirement party (as long as you have the receipt). Even if formal policy says no to a return, it may simply be ignored if you are polite about it and willing to accept a store credit as a compromise.

In part to soften customer concerns about the risks of buying online, retailers have made buying from the Internet into a shop at home service, making returns as easy as putting the product back into the box, sticking on a return label and sending it back from whence it came—sometimes at no additional cost. (Shoe purchases seem to be particularly blessed in that way.)

When the goods come from a boots-on-the-ground shopping experience, customers are increasingly becoming their own shop at home services, scooping up whatever looks promising (sometimes in alternative sizes and colors) and making final purchase decisions in the privacy of their own bedrooms. The result of all this back and forth is that is that, depending on the category, returns can equal as much as forty percent of a retailer’s sales—perhaps even more in seasonal spikes.

When an item is marked “final sale,” however, the retailer is saying: “I’ve had enough of all that; I really want this one to move; here it is at a very good price I would never otherwise accept; now take it and don’t ever let me see it again.” We can all understand why a no-returns policy makes sense for underwear. But consider this as well: every luxury retailer has stories about evening gowns returned the day after a well-publicized big event, fragrant with perfume. For the same reason, it is understandable why a jeweler would make returns difficult or even impossible—to avoid, that is, turning into a free lending library for expensive necklaces and bracelets.

So by all means, take advantage of final sale offers. (By definition, it is your last chance to buy the item anyway.) But keep in mind that there is no turning back when you do. Your moment as your own style consultant has come: if you buy it, you own it, so make sure you like it at point of sale.

A special, final and heartfelt warning: if you are a guy with a wife or girlfriend who examines what you wear as if your reputation and hers depended on it (How, you may ask, would I know of such a guy?), you had better bring her along, just to be sure. If she first sees it when you bring it home and on the spot offers an opinion along the lines of, “What were you thinking? Take that thing back!” it is no time for your response to start with, “Uh…”

Credit: Alan Behr

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Accessories Childrenswear Footwear Intellectual Property Menswear Textiles Womenswear

Keeping Control Over Your Brand

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In the movie A Hard Day’s Night (1964), unscrupulous menswear marketers lure George Harrison into their office, there to assure him that the two new shirts they put into his hands are essential to his self-esteem. When George says the goods are frightful, the head marketer comforts his team that, “within a month, he will be suffering a violent inferiority complex and loss of status because he isn’t wearing one of these ‘nasty’ things.”

The point was that the guiding spirits of the generation of the 1960s formed up against the commercialism and consumerism that were behind marketers’ attempts to pass off “nasty” goods as status symbols for insecure youth. How times have changed. Someone with a device in his pocket that pitches out brands and branding stories faster than summer rain drenches a field views branding and the commercial motives behind it in a much more positive light. Brands ignite consumer interest as never before, and brands win when they have good stories to tell—stories that create interest and become viral once consumers are engaged. Brands are, after all, nothing but good will with consumers, and once that is obtained, the message is spread most effectively by consumers imitating each other and aspiring to what each other has. The bad news that follows from the good is that consumers, in exchanging with each other messages about brands they know, are becoming as important in the control of a brand’s destiny as the brand’s owner—and its marketers.

For that reason, never has the creation and the protection of strong trademarks been more important for the fashion business. The value of the trademarks is applied directly to the bottom line in the form of good will. There are terrific fashion brands that own little else but their trademarks and related domain names—not the factories that make the clothes, not the stores in which they are sold, not even the photocopy machines in the corporate office. What they have are strong trademarks protected throughout the areas of current use and expected operations. The moral of the story: work with your trademark lawyer to develop, as early as possible, a solid and workable trademark protection program, and then stick to it by carefully searching and analyzing all new prospective trademarks and by registering them promptly as soon as the anticipated need arises. What have you to lose by not doing that? Only everything you may have.

Credit:  Alan Behr

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Cases Footwear Intellectual Property Womenswear

Seeing Red–and Your Brand

Louboutin

One of the ways to build brand identity in fashion is to create strong customer recognition of a particular color as a signature of the brand. That has value across all lines of commerce. We can be sure, for instance, that no one will consider starting a worldwide package delivery service that uses solid-brown trucks and driver uniforms. In fashion, there are many examples, from Tory Burch’s orange doors to the red outsoles of Christian Louboutin footwear—the latter of which became the subject of important litigation in the United States.

In the Louboutin case, Louboutin v. Yves Saint Laurent Am. Holding, 696 F.3d 206 (2d Cir. 2013), the Second Circuit Court of Appeals held that Louboutin could retain its trademark registration for red lacquered outsoles for “women’s high fashion designer footwear” in which the outsole and upper were of contrasting colors. What that means is that, if your competing shoes are monochrome, as was the YSL style (which had a red heel and insole as well), you can use red lacquered outsoles. But for all other such footwear, Louboutin owns the exclusive right in the United States to use lacquered red for outsoles. Both sides in the case were therefore able to claim victory: the particular Yves Saint Laurent style did not infringe the Louboutin trademark because it was indeed all red, but the Louboutin trademark was not stricken from the register, simply limited to what Louboutin has mostly been doing all long—which is to put lacquered red outsoles on women’s footwear with contrasting uppers.

It is not often that litigation ends in such a win-win scenario, but the message remains the same in any situation: If you have an important color that you believe is part of your brand’s “signature,” work with counsel to structure efforts to seek protection of that color as an element of both a trademark (a brand identifier in the form of words and logotypes) and trade dress (a brand identifier in the form of particular elements of product packaging and, with a bit more effort, the products themselves).

There are related issues. One is the color spectrum: if you are claiming the color blue, what range between blue-tinted white to midnight blue, on one hand, and green-blue to gray-blue, on the other, are you claiming as your true blue? Another issue is the business spectrum: what are the product categories and the markets (by type of customer, price point, etc.) for which you are claiming exclusivity for your color? And as the Louboutin case shows us, much may ride on the positioning of your “signature” color on products (and packaging) and your ability to prove that the marketplace understands that the signature is yours alone.

The takeaway from all this remains much the same as with other questions concerning branding in the fashion and accessories sectors: marketers should work closely with lawyers and get them involved as early as possible in the decisions that they make.

Credit: Alan Behr