Cutting Edge – News Updates
Vanity Fair covers Dolce & Gabbana v. Diet Prada
An in-depth look at this landmark defamation lawsuit and the Fashion Law Institute’s pro bono defense:
With litigation pending for more than two years in Italy’s COVID-delayed legal system, Liu and Schuyler have lived “under this Dolce & Gabbana-designed sword of Damocles,” according to Fordham University law professor and Fashion Law Institute director Susan Scafidi, who represents the pair pro bono. It’s the kind of David and Goliath legal battle that usually stirs sympathy: The wealthy owners of a famously decadent billion-dollar company are suing two self-employed bloggers for more money than a court ordered Samsung to pay Apple, in 2018, for copying the iPhone….
I know not everybody likes them,” said lawyer Marco Amorese, the Bergamo-based lawyer who leads the Italian half of Diet Prada’s legal team. But when Scafidi told him about the case, he realized that the issues tapped into a subject of heated debate in Italy and across Europe: strategic lawsuits against public participation, known as SLAPPs. Or as Scafidi said of the lawsuit: “The goal, above all, is to silence them.”
SCOTUS on trans rights, dress codes
The Supreme Court has released its landmark ruling in Harris Funeral Homes v. EEOC, which is consolidated under Bostock v. Clayton County. Key passages and the whole ruling PDF below — in brief, the Court holds that it is illegal to fire someone for being transgender, but the ruling expressly does not reach the issue of dress codes.
Inside Look at In-House 4
Click through for more from Daily Fashion Report’s Laurel Marcus on our fourth annual in-house counsel panel!
Fashion Week is always a good time to check in with Professor Susan Scalfidi Fashion Law Institute at Fordham University. On Friday morning I did just that with “Inside Out 4,” a breakfast panel featuring seven seemingly bright-eyed lawyers discussing the invigorating question: “What Keeps Fashion’s In-House Counsel Awake at Night?” Undoubtedly these individuals often forgo their beauty rest due to a number of worries. Some examples of these include new and ever-changing technology (cybersecurity, A.I. for instance); complying with advertising regulations; securing customer privacy and big data; and the levying of international tariffs.
Others mentioned additional obstacles to getting some “shut-eye:” YouTubers posing as content creators, often in direct conflict with digital or print media; constantly trying to avoid missteps involving cultural appropriation; “inspiration” vs. copying issues; violations of copyrights on fashion and art; liability issues from loan agreements regarding fragile works of art or fashion; and class action wage lawsuits involving things as simple as employee bag searches which occur before time clocks are punched. Whew! I’m exhausted just listing these items.
Breaking: Gucci & Forever 21 Settle Stripes Case
Forever 21 and Gucci have settled their lawsuit over the Gucci Web trademarks – the famous Gucci Blue-Red-Blue and Green-Red-Green stripes.
The high-profile companies’ struggle over stripes created ripples throughout the fashion industry, especially among companies accustomed to sending cease-and-desist letters and negotiating private settlements with fast fashion’s usual suspects. F21’s preemptive dash to court via a declaratory judgment action didn’t strip Gucci of its stripes, but it will have a lingering effect on brand protection programs, causing trademark owners to re-consider whether sending a C&D is risk-free.
Disclosure: Professor Scafidi was an expert for Gucci in this case.
Converse Wins
Trademark Appeal
Today the Federal Circuit issued an opinion in Converse v. International Trade Commission, a trademark case involving the midsole design of Chuck Taylor All Stars. The decision was a major victor for Converse, which will now have another opportunity to prove that Skechers, New Balance, and the owners of the Ash brand — the remaining intervenors in the case — infringed the mark and to defend its validity.
The opinion is also significant for trade dress in general, clarifying that claimants must demonstrate the existence of secondary meaning before the first use in each case of infringement, and also that the relevant period for analyzing secondary meaning is five years prior to registration or prior to first infringing use, whichever is earlier. In addition, the Federal Circuit adds unsolicited media coverage to its list of factors to consider in assessing secondary meaning and changes the way it treats the factors of length, degree, and exclusivity of use, noting in passing that each of the 11 circuit courts has a slightly different list. SCOTUS, are you listening?
Overall, Converse’s attempt to protect its classic Chucks is still a marathon rather than a sprint, but the company has pulled ahead of its competitors for now.
Below: the Federal Circuit’s ruling and the Fashion Law Institute’s amicus brief!
Requiescat in pace: Stephen Freedman
Stephen Freedman, Provost of Fordham University, was a friend of the Fashion Law Institute from the beginning. Not only did he have family connections to the industry, but he also had a kind word whenever we saw one another on campus — and he was probably the only chief academic officer of any university ever to request an invitation to a Marc Jacobs runway show. (Thanks again to our friends there!) Of the many projects Stephen helped facilitate at Fordham, he always said that the founding of the Fashion Law Institute was one of the two of which he was proudest.
We’ll miss you.
Photo: Professor Susan Scafidi, CFDA Chair Diane von Furstenberg, and Provost Stephen Freedman at the announcement of the world’s first master’s degrees in Fashion Law.
Professor Scafidi on harassment in fashion
WWD has a roundup of reactions to the Harvey Weinstein news and its implications for the fashion industry. Here’s an excerpt from Professor Scafidi’s comments:
Legally, many models who experience sexual harassment have no recourse unless they are actually threatened or physically violated, in which case criminal law may apply, assuming enough evidence to bring a case. Since models are considered independent contractors, sexual harassment laws designed to protect employees typically do not apply. New York State’s inclusion of models under 18 in its child performer protection law starting in 2013 was a victory, but more legal support is necessary. In fact, in an era when traditional employer-employee relationships are giving way to the gig economy more generally, society as a whole could benefit from studying the problems experienced by models and creating structures to combat sexual harassment and abuse in every context.
More here.
Is Social Media the New Court of Law for Fashion Copycats?
MarketWatch
“Most of the time, however, indie designers have little legal protection and instead have to appeal to social norms against copying,” said Fordham University law professor and fashion legal expert Susan Scafidi. “In other words, they have to try the case in the court of public opinion and hope that social pressure forces the alleged copyist to do the right thing.”
7 Signs You Are Buying A Counterfeit Product
Kiplinger’s
Professor Scafidi joins Real Real authentication director (and Fashion Law Bootcamp alum!) Graham Wetzbarger in discussing how to identify fake fashion.
As sophisticated as counterfeiters may be in replicating high-demand products, there’s usually at least one giveaway if you look closely enough. Anything that looks sloppy, such as uneven stitching or sloppy edge dye, is a telltale sign of a fake, Scafidi says. Counterfeit products are designed to fool the eye — not the fingertips … .
Symposium Round-ups
At the Fashion Law Institute’s 7th Annual Symposium, speakers highlighted an array of cutting-edge developments that could have a substantial impact on the fashion economy in the U.S. and abroad. To address these issues Congresswoman Carolyn Maloney discussed the state of the American fashion sector and called for a comprehensive new lobbying effort, bringing Washington and the fashion world together to design laws best suited to helping the American fashion industry survive and advance.
For more, check out this WWD account of Congresswoman Maloney’s proposal and the symposium rundown in Look Online: Daily Fashion Report, which also provides a summary of each of the day’s panels.
And vsit the Fashion Law Institute’s Facebook page for a complete set of photos taken throughout the event!
