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Accessories Menswear Womenswear

Mon Chapeau

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Full disclosure: I love hats. Of course, they are functional. Is the sun in your eyes or has the snowfall become a whiteout? Don’t walk around with your hands on your brow or head—wear a hat. There is no reason that a man or a woman should take care to be stylish from toes to eyebrows and call a halt there. Head north and crown your work with an appropriate chapeau.

Headgear loyalty recently came to mind when my wife, a stylist at a major retailer, again attended the annual “hat luncheon” in the Conservancy Garden in Central Park (officially, the 29th Annual Frederick Law Olmstead Awards Luncheon given by the Women’s Committee of the Central Park Conservancy). My wife and her buds looked great in their hats. How hard is it to choose the right hat in an age in which the rules of hat wearing, one as clear as the rules of chess, have become a bit opaque? My wife’s elegant solution: take our preschooler to the store and wear whatever he selects. (It was the yellow one.)

My dilemma with hats is circumference—of my cranium, I mean. I have known only one guy who ever had a hat size bigger than mine—the inimitable Stan Murray, the late father of Shep and Ian Murray, the founders of Vineyard Vines. When Stan put one of my enormous lids onto his head, it looked like a yarmulke.

Just the same, there is one hatter in London and another in Dublin that carry good selections in my size. In Los Angeles, I had a fedora custom-made for me by Baron Hats, which did the same for Indiana Jones (i.e., Harrison Ford, in character). And how will I choose my hats going forward? Luckily, at home, I have a preschooler.

Credit: Alan Behr

Photo Credit: WhatsThatPicture (Creative Commons)

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Accessories Childrenswear Footwear Licensing Menswear Womenswear

License Agreements: Aim for Fairness — But Words Have Meaning

licensing

It can be said that a licensing arrangement is inherently symbiotic in nature, with the good faith efforts and cooperation of both the licensor and the licensee being necessary for success. The licensor provides its trademark, perhaps some degree of design expertise (particularly in the fashion field), and perhaps also brand customer relations and certain advertising and promotional assistance; and the licensee contributes its expertise in the particular industry covered by the license and possibly its customer relations, its organizational structure and capital resources. The resulting relationship, in a very practical sense, is that of a joint venture or a partnership. Although on one level the negotiation and drafting of a license agreement must be approached as an adversarial process, both parties also should recognize that they will be more likely to view their arrangement ultimately as a success if it strikes a balance, on the one hand, between the licensor’s legitimate concerns for the maintenance of its image and quality standards, for the protection of its trademark and for fair compensation for the rights it has granted and, on the other hand, the licensee’s legitimate desire to exploit the rights granted to it in an economically advantageous manner consistent with industry norms in the applicable market segments and without fear of termination if it is performing in good faith. Ideally, therefore, the parties should approach the negotiation and documentation of the license agreement from the perspective that each of them is looking to make the venture a success for both of them and should recognize and attempt to satisfy the other’s needs.

That said, no matter how much the parties aim for “fairness,” there almost surely will be provisions that a licensor perceives as necessary to protect important interests which a licensee considers unfair, unduly burdensome or overreaching. Before proceeding with an agreement, a licensee must remember that words have meaning and a licensor can seek to force the licensee to conform in its performance to what the agreement says. A licensee cannot rely on its business sense (or gut) to assume that a licensor would “never do that,” even if the licensor assures it that the licensor never has done so before. There also can be no great comfort in the thought that the provision might not be enforceable, since the time and cost involved in adjudicating the issue can be enormous, even if the licensee succeeds. If the agreement requires certain conduct or prohibits certain acts, a licensee should assume that those words control and that, if it ignores them and its licensor’s demands for conformance, it does so at its peril.

Credit:  Jonathan R. Tillem

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Accessories Cases Childrenswear Menswear Womenswear

Is the Country of Origin Labeling Requirement Unconstitutional?

ClothingLabel-MadeChinaThe constitutional rights of businesses are hot topics. Freedom of speech is a fundamental tenet of liberty, protected by the First Amendment to the Constitution, that benefits commercial entities as well as individuals. The right to spend unlimited money to support the election or defeat of particular candidates for office derives from the right to freedom of speech. But does the same First Amendment right protect businesses from being compelled by government regulations to speak on matters as to which they would prefer not to comment, whether or not they are “controversial” or “political”? Is there a freedom to refrain from speaking?

If you think this question has nothing to do with fashion, you would be wrong. Every manufacturer in the fashion and accessory business labels its products with their “country of origin”, guided by detailed regulations promulgated by the Federal Trade Commission. Decisions in two recent cases, which have nothing to do with fashion, but everything to do with government regulations compelling businesses to speak on the source of their products, suggest that the “country of origin” regulatory scheme for the fashion industry may be challenged on First Amendment grounds.

A federal statute requires country of origin labeling for meat to address the country where the animal was born, raised or slaughtered. New rules for implementing the statute were promulgated in 2013 to comply with a World Trade Organization ruling on a complaint from Mexico and Canada, requiring greater specificity in describing separately the country where each of these events in the animal’s life occurred. A group of trade associations, feedlot operators and meat processors filed suit to enjoin the rules, claiming they violated the First Amendment. The argument was rejected by a three judge panel of the Court of Appeals for the D.C. Circuit, holding that the First Amendment did not bar the government from compelling factual speech on a non-controversial matter that might be of interest to consumers. The full court, however, voted to hear the case anew before all eleven judges of the court. The parties were directed to address the scope of First Amendment protection for mandatory disclosure of purely factual and non-controversial commercial information, compelled for reasons other than preventing consumer deception.

The outcome of this review may be foreshadowed by the same court’s decision on April 14, 2014, striking down Securities and Exchange Commission regulations that required public companies to disclose whether they used “conflict minerals” (minerals from the Democratic Republic of the Congo used by warring factions to finance their operations) in products they marketed or manufactured. The three judge panel found that it was unconstitutional to compel speech in the absence of a need to prevent consumer deception.

So one might well ask whether it is unconstitutional to compel apparel manufacturers to say anything about the subject when they are not marketing goods based on the country of origin. What purpose does it serve and do consumers need the information?

Credit: Helene M. Freeman

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Accessories Childrenswear Footwear Licensing Menswear Womenswear

License to Kill (Your Business)

Licensing represents an opportunity for a fashion brand founded on one or a small number of product lines to stretch into almost any clothing, jewelry, beauty or accessories category—and beyond.  Moving into a broad range of products and services has been an especially successful strategy for luxury brands.  Consider that Ralph Lauren started as a maker of men’s neckties and that Hermès began as a maker of harnesses for carriage horses.  Although you sometimes hear the saying that, “No one ever got rich licensing a brand,” licensing can be a useful, even necessary tool to build brand awareness among both old and new classes of customers.  When you leap into categories that have specialized production requirements, unique distribution methods or simply just high barriers to entry—consider timepieces, fragrances and eyewear—licensing is about the only sensible way to make it happen.

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But what is a legal article without a warning about pitfalls?  (Just as designers are paid to create and merchants are paid to awaken and satisfy customer desire, lawyers are paid to worry.)

  • For the licensor, a key concern is that its licensing agent or licensees themselves may prove unmotivated or unable to bring the brand’s image to new product lines.  A licensor can find itself devoting an inordinate amount of time to servicing the product development needs of its licensees—to the point that, in extreme cases, the licensor can start to feel as if it is working for its agent or licensees.  On the other hand, licensees’ successes may kindle the temptation to over-license, risking dilution of the brand.
  • For the licensee, pitfalls can include disapprovals of products by the licensor that result in missed shipping dates, lost markets or revenue, confusing or incomplete branding direction or support (especially after a change of control at the licensor), and all the potential dangers that come from devoting your business to enhancing the goodwill of someone else’s brand.

Any one of those concerns can cause serious—and in extreme cases terminal—problems for participants in the licensing game.

In subsequent posts, we will review the ins and outs of licensing in more detail.  As with a good story, where the art is in the telling, with a good license, the art is in the drafting.

Credit:  Alan Behr

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General / Musings Menswear Womenswear

Dressing Your Age

Jacket

Conventional wisdom holds that we all look best when our clothing is age appropriate.  But what does that mean now that people are living longer and rock stars bring their grandchildren to their concerts?  What is age appropriate for a nonagenarian anyway?  I ask that because, when I recently had to leave town suddenly, I went down to the Uniqlo flagship store (in the office building where this firm is headquartered), bought a pair of chinos and a pair of jeans and had them altered to grab and run that afternoon.  Should an American lawyer and dad step into clothes styled for Japanese teenagers?  Sure, if he has the build and taste of a Japanese teenager, which my experience convinces me I do.  As the actuarial meter is reset by advances in medicine and nutrition, and as we all hear that fifty is the new thirty (or was it sixty is the new forty?), we may need to rethink when it is that we time out of our clothes.  If I had to do it over, I would not have given away that supple suede bomber jacket when I hit forty, thinking I had aged out of it.  The way things are going, it may be time for me to buy another.

Credit:  Alan Behr

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Accessories Childrenswear General / Musings Intellectual Property Menswear Womenswear

Fashion: It is a business.

In business law, whatever the business might be, commercial considerations come first.  An airtight contract or brilliantly argued appeal means nothing if it showcases the lawyer’s prowess but fails to deliver on the client’s business objectives.  For anyone practicing fashion law, the first rule, after knowing the law, is to know fashion and the fashion business.

Dressmaker dummies / mannequines / modelsWithin that broad mandate, we all bring our personal points of view, as future posts on these pages will surely reveal.  And here are a few of mine:

Our Fashion Practice Group represents designers, manufacturers, brands and retailers.  That translates roughly into hope, expectation and reality.  Design has every right to be seen as one of the applied arts; as with all the arts, practitioners must be mindful of the marketplace but not be a slave to market expectations.  Overall, I see designers as optimists by nature; they are energized by hope even as they labor to fulfill our dreams.

In representing designers, we borrow methods from our art law and general business practices, working to defend originality in design with the legal tools of copyright, trade dress and design patent protections.  In contracts, we help designers in their relationships with the makers of the fashions they conceive and in the protection of their names as brands.

For a manufacturer or brand owner, the designer’s work has transformed into expectation–of sales, market share and ultimately of brand enhancement.  Here is where we devote much of our work to trademark protection, contracts with suppliers ranging from manufacturing sources to advertising agencies, to factoring deals, and contracts with retailers.

What is retail if not a bucket of true reality for every fashion design ever to make its way to the judge and jury of all fashions—the eye and wallet of the consumer?  To make that a successful encounter, we help with store leases; the employment of sales staff and others; stop-in-shop deals; and, of such increasing importance, website development and maintenance, and social media utilization.  However inspired the vision, however brilliant the execution, and however clever the marketing and display, if the customer does not buy it, what you have on the racks are rags, not riches.  The job of the fashion lawyer is to do what he or she can to bring each fashion fairytale to a close in the way that all fairytales should—with a happy ending.

Credit:  Alan Behr