Cutting Edge – Articles
Surf & Turf: Owning Your Name
For more on fashion law and IP, check out Fashion Law Bootcamp: Special Edition in Silicon Valley!
Celebrated indie designer Thaddeus O’Neill has been racking up honors for his luxury line inspired by surf culture: Woolmark Prize finalist, top 10 in the CFDA/Vogue Fashion Fund competition, and now a CFDA Fashion Incubator designer. Like any savvy creator, he is seeking to protect his brand equity by registering his trademark, but this is where the legal surfing has become a bit heavy, as European-owned apparel brand O’Neill is challenging the registration.
The Fashion Law Institute has put together a pro bono team to help Thaddeus with this case, with Roxanne Elings of Davis Wright Tremaine serving as counsel, and Professor Scafidi has this to say about how emerging designers can protect their interests:
“There is such a long history, particularly in the fashion industry, of designers using their names on the label and consumers understanding that companies may have similar but different names.”
What recourse does O’Neil have now that O’Neill has shown signs of not backing down? “He can fight this on the grounds of tradition and by showing the opposite of what O’Neill is trying to claim, that the products are different.”
For more, check out coverage of the dispute in The Business of Fashion.
Recharging Wearables: Fabric as Power
For more on fashion law and tech, check out Fashion Law Bootcamp: Special Edition in Silicon Valley!
As we become ever more dependent on smartphones, tablets, and digital watches, recharging our batteries has gone from a metaphorical refresher to an all too literal imperative. Researchers at UC-San Diego, however, are pointing to a new way of addressing this problem beyond endlessly looking for outlets in all the wrong places: powering devices with your own sweat.
From the abstract in the latest issue of Energy and Environmental Science:
This article describes the fabrication, characterization, and real-life application of a soft, stretchable electronic-skin-based biofuel cell (E-BFC) that exhibits an open circuit voltage of 0.5 V and a power density of nearly 1.2 mW cm−2 at 0.2 V, representing the highest power density recorded by a wearable biofuel cell to date…. When applied directly to the skin of human subjects, the E-BFC generates ∼1 mW during exercise. The E-BFC is able to power conventional electronic devices, such as a light emitting diode and a Bluetooth Low Energy (BLE) radio. This is the first example of powering a BLE radio by a wearable biofuel cell. Successful generation of high power density under practical conditions and powering of conventional energy-intense electronic devices represents a major step forward in the field of soft, stretchable, wearable energy harvesting devices.
As one of the researchers explained to New Scientist, “We’re now getting really impressive power levels. If you were out for a run, you would be able to power a mobile device.” What’s more, this could also make be used to power wearable sensors to gather and send health data. As fabric technology continues to advance, we could see activewear textiles valued not just for their capacity to evaporate sweat, but to harness it.
Of course, with great power comes great responsibility, and the legal ramifications of recharging through wearable fabric run from skin interactions, FDA regulation, and data security to more tangential risks of litigation. And this just touches the surface as to the ramifications of textile tech — we’ll be exploring these issues and more at our upcoming Fashion Law Bootcamp: Special Edition in San Francisco and Cupertino!
Name game: G-III swaps out Ivanka labels
Was it illegal for G-III to replace Ivanka Trump labels with those of another brand? Lauren Sherman asks Professor Scafidi for The Business of Fashion:
“US textile product labelling laws allow substitution of labels, so long as the entity making the substitution is identified on the new label and keeps records for three years,” explained Susan Scafidi, professor of fashion law at Fordham Law School and founder of the Fashion Law Institute. “This is mostly for supply chain tracking reasons. All of the other required information on the label — fibre content, country of origin, etcetera — must be maintained.”
…
“If the original label [is replaced] with that of a third party unaware of the substitution, the [responsible party] would be liable to the third party,” Scafidi says. “All of this derives historically from the law of fraud.”
Swatches and swipes
The 9th Circuit’s ruling in Unicolors v. Urban Outfitters is interesting not only for its discussion of the proper standard for summary judgment in a copyright infringement case, but for its glimpse into Urban Outfitters’ design process.
The 9th Circuit concluded that this process was evidence of recklessness — a revealing example of why it’s essential to understand that in this age of ubiquitous tech and far-reaching discovery, the image of corporate enterprise as an impenetrable black box has all but disappeared.
Supreme Court: Varsity Wins!
It's a big win for the fashion industry!
The Supreme Court’s opinion in Star Athletica v. Varsity is truly historic, slashing through the thicket of tests that had grown up around design copyright. Echoing the Fashion Law Institute’s amicus brief, the Court found that the language of the statute already set the parameters for a standard:
The Court’s approach is consistent with its recent copyright jurisprudence, particularly in the years since the late Justice Scalia was appointed. This is why our amicus took a different path from devising a novel ad hoc test; the Court has for decades demurred from adding judicially-created rules when the statute established an identifiable standard. When in doubt, just read the statute!
In this instance, the policy embodied in previous Court precedent and the statute itself was clear: copyright is an adaptive, medium-agnostic legal category, extending to creative work susceptible to cross-platform replication. As applied, this standard is at once expansive and bounded: per the opinion, even as the statute gives copyright protection to a broad spectrum of creative works, it also excludes elements that can be reduced to utilitarian function outside of conveying information or portraying appearance.
As a result, the status quo is preserved without sacrificing the standard’s fundamental elasticity; what courts define as utilitarian and limited to specific media now could grow in interesting ways in years to come.
For now, fashion designers can continue to rely on copyright protection for their original fabric prints and jewelry. Let’s hear it for SCOTUS!
Congratulations to everyone on team copyright, and thanks to everyone who was part of the Fashion Law Institute's amicus brief: industry signatories Jeffrey Banks, Maria Cornejo and Marysia Woroniecka of Zero + Maria Cornejo, Nathalie Doucet of Arts of Fashion Foundation, Keanan Duffty, Barry Kieselstein-Kord, Melissa Joy Manning, Jack McCollough and Lazaro Hernandez of Proenza Schouler, Narciso Rodriguez, and Professor Susan Scafidi; our counsel of record, Michelle Marsh of Arent Fox; and our co-authors, Susan Scafidi, Jeff Trexler, Mary Kate Brennan (Fashion Law LL.M. expected '17), and Jackie Lefebvre (J.D. expected '17)!
Cured? Bangladesh courts shutter tanneries
Sweatshops and factory fires have not been the only object of criticism in regard to the Bangladesh garment and accessories industry. Water has also been a substantial focal point of concern -- in particular, the water being polluted by upwards of 200 tanneries in Dhaka, which for decades has been a leading hub for regional and international leather production.
Judges in Banglandesh appear have taken the past few years of exposés to heart, as first the High Court and now the Appellate Division have ruled that 154 Dhaka tanneries must close. On the surface it's an obvious call -- after all, how can anyone object to curbing water pollution and workers' exposure to dangerous chemicals?
And yet objections there have been, likewise grounded in an ethical concern: the effect of the closure on tannery workers' livelihoods.
On Mar 6, the High Court ordered immediate closure of tanneries in the city and instructed authorities to snap power, water and gas connections for them.
The court's verdict came following a petition by the Bangladesh Environmental Lawyers' Association (BELA).
Bangladesh Finished Leather Goods and Footwear Exporters' Association (BFLGFA) Chairman Mahiuddin Ahmed Mahin moved the Appellate Division to stay the order.
BFLGFA counsel said during Sunday's hearing: "My clients are yet to receive the compensation to relocate. It's a matter of a lot of people's livelihoods. At least give us time until June."
"We are sorry," is what the court said before rejecting the petition.
The photos in this post, taken by photographer Michael Foley, highlight the conflicting interests at play. In the US we've already seen the spectacularly unpredictable systemic effects that can follow the collapse of manufacturing hubs; what's next for Bangladesh remains to be seen.
Sex Objects and Civil Forfeiture
Neither women nor property should be treated as mere objects -- that's the takeaway from two seemingly unrelated developments in fashion law last week.
Saint Laurent's Ad Adjustment
In the latest of a series of regulatory enforcement efforts directed at fashion brands, French advertising authorities published a ruling against a December ad campaign by Saint Laurent and initiated new action against two more Saint Laurent ads, one of whose images is posted above.
The ruling highlights the legal and ethical concern at the heart of these enforcement efforts: as provided in the French agency's "Image and Respect of the Person" guidelines, "Advertising shall not reduce human persons, and in particular women, to the function of objects." This anti-objectification rule reflects Kant's influential ethical standard known as the categorical imperative, which rests on a fundamental distinction between person (in Latin, persona) and object (res). In brief, a person is to be treated in ways that reflect human dignity and autonomy, not reduced merely to a useful object.
For French regulators, as for many complaining about fashion ads, marketing that depicts women as "hypersexualized" or thin are fundamentally at odds with the ethical distinction between persona and object; sexuality is seen as reducing women to their physical utility, which images of thinness are said to coerce women to feel bad about themselves and to follow an unhealthy lifestyle.
It's worth noting, though, that the regulators' view of sexuality and human proportion are not universally held. For some, expressing agency, freedom, and power through sexual expression is a quintessentially human (not to mention feminist act). Likewise, freedom and agency in regard to one's body takes shape in a wide range of approaches to bodily modification, from ostensibly extreme forms of adornment and plastic surgery to the full spectrum of dietary choices and body types. Does rejecting these perspectives as a matter of law deprive their adherents of their fundamental human dignity and autonomy? I'll leave that for you to decide.
Counterfeits and civil forfeiture
Even as French regulators were delving into the distinction between person and object, Justice Clarence Thomas issued an intriguing concurrence in a denial of certiorari that also explored the relation between persona and res. The case: Leonard v. Texas, in which the appellant questioned the constitutionality of civil forfeiture statutes.
Noting that the Court was declining to hear the case on procedural grounds, Justice Thomas went on to set forth several reasons for concluding that the time had come for civil forfeiture to end. The core problem, Justice Thomas argued, lies in the distinction between in personam and in rem jurisdiction. In this instance, taking property in an in rem action with no regard to the individual's rights in connection with that property shows a nihilistic disregard for due process; by reducing a person's property merely to its alleged utility in committing a crime, we dehumanize the person as well.
The future of civil forfeiture laws is a matter of serious interest for fashion anti-counterfeiting efforts, inasmuch as the seizure of fake goods through proceedings directly against the property has long been a standard means of getting counterfeit merch off the market. This is true at both the state and federal levels, with Texas as a telling case in point: depending on the amount, trademark counterfeiting can qualify as either a first- or second-degree felony, thus making the goods subject to forfeiture under the state's Code of Criminal Procedure.
Justice Thomas's contention that civil forfeiture laws are a historical aberration that do not fit within contemporary constitutional due process standards is a conclusion that in its broadest contours has become rather popular since John Oliver featured the practice on Last Week Tonight. Can - and should - this tactic be saved?
Justice Thomas's examination of the history of civil forfeiture provides grounds for taking a more tailored approach. Two observations are particularly important. First, Justice Thomas observes that centuries ago civil forfeiture was limited mainly to customs and piracy, in which the perpetrators were typically overseas and outside the personal jurisdiction of the court. In addition, he notes that traditional civil forfeiture targeted the means by the crime was accomplished, not the proceeds from committing it.
While intellectual property pirates are in some ways qualitatively different from the oceanic predators of long ago, anti-counterfeiting civil forfeiture addresses similar policy concerns. With foreign-made goods and online sales the perpetrators are often anonymous and well outside the reach of courts, let alone law enforcement. Likewise, the focus of enforcement is not on seizing revenue but getting the goods off the market, typically by destroying them. The sort of abuses highlighted by both Justice Thomas and John Oliver -- e.g., police officers using asset seizure for self-enrichment at the expense of tourists and the poor -- rarely if ever appear.
If the Court does take a civil forfeiture case, the optimal approach could take take civil forfeiture back to its roots with a narrow standard tailored to situations such as fashion piracy. As an added safeguard to discourage abuse by officers on a thinly disguised shopping expedition, the law could require expert assessment as to whether the goods are indeed counterfeit, along with mandatory destruction of all seized fakes.
The greater significance of these controversies, though, lies in what they reveal about a deeper tension with fashion law and ethics: our imperfect and often conflicting attempts to delineate the boundary between person and object.
Fashion, Politics, and Doing Good Well
The fashion world is showing a renewed interest in political and social activism, and Professor Scafidi discusses what this means in her latest columns for WWD.
The image above is from her most recent article: How Can Fashion 'Do Good' Well?
Fashion is finding its political and social voice, but doing good well — in legal and business terms — requires more than strong beliefs, bold statements and good intentions. Just ask Lady Gaga. She promoted the sale of bracelets for an apolitical humanitarian cause, earthquake and tsunami disaster relief for Japan in 2011, only to find herself the target of a class action lawsuit charging that not all of the proceeds had gone to charity. A year and a six-figure settlement later, it was apparent that the claims involved only sales taxes and shipping and handling fees, but reputational harm and legal costs had already accrued. Similar dangers may await designers inexperienced in activism.
And in light of legal changes that stand have a significant impact on the fashion industry, Professor Scafidi's previous article asks, Where is Fashion's March on Washington?
To claim a regular place at the negotiating table, even more important than investment of money or time is a proactive rather than reactive agenda that is reflective of the industry as a whole, as opposed to discrete segments. Incisive tweets and statement accessories can be an important part of public discourse, but fashion ultimately needs to draw from deeper wells of examination and expertise to advance a sustained strategic program.