Fashion Law

Fashion Law 101: Lessons in Branding From "The Great Gatsby"

Staci Riordan — Tue, 14 May 2013 10:28:26 -0500

Guest Post by Jackie Lechtholz-Zey, Esq.

As most of you know by now, we love branding over at the Fox Rothschild Fashion Law Blog. We love building brands, expanding their visibility through creative licensing strategies, and ultimately creating lifestyle brand empires.

In the past, we’ve seen some exciting brand collaborations on the screen (really, television) and the fashion lines that were sparked. For example, NBC’s Fashion Star showcases design competitions where winning garments are bought by retailers and become available for purchase by the public as soon as an episode is over. Banana Republic and AMC’s Mad Men costume designer Janie Bryant have teamed up several times to create exclusive collections with period inspired pieces for the retailer.

The recent release of Ba z Luhrmann’s The Great Gatsby has piqued our branding interest in a new way. While we’re used to seeing after-the fact-licensing as mentioned above, and merchandising with films—think lunch boxes, action figures, costumes—we haven’t before seen the level of seamless brand integration as in this Jazz Era stunner.

So what lessons can you learn from Gatsby?

Collaborate in Advance. Initially, Gatsby’s costume designer Catherine Martin had used Miu Miu and Prada looks for the film’s tests. These pieces were so successful that Martin approached Miuccia Prada to actually participate in creating 40 Prada and Miu Miu looks for the film. Brooks Brothers supplied all of the men’s costumes and 600 background suits, while Tiffany & Co. provided the dazzling jewelry. The end result is gorgeous looks for the film, with built-in publicity for the brands involved.

Showcase and Sell Your Collection. Right before Gatsby’s release, Tiffany’s began promoting its Jazz Age Glamor collec tion, which is now available for purchase. Miu Miu, Prada, and Brooks Brothers are also showing collections of items featured in the film. Consumers are able to see what they like on the big screen and then purchase those items. That’s a great way to tie in the entertainment and retail experiences.

Exhibit and Promote. Prada capitalized on the publicity surrounding Gatsby’s release by showcasing an exhibit at Prada’s SoHo store of the 40 head to toe looks used in the movie. Dubbed Catherine Martin and Miucca Prada Dress Gatsby, the exhibit is another clever way to draw attention to the film and fashion collaboration.

Ultimately, the idea is to engage the consumer with your brand in a variety of ways to increase visibility and brand awareness. With the recent creative branding and merchandising strategies in The Great Gatsby, we’re now one step closer to a fully integrated e-commerce experience, where consumers see what they like on the screen and can immediately purchase those items.

What can you do to give your target audience an on-demand shopping experience?

Fashion Law 101: Visual Storytelling

Staci Riordan — Tue, 30 Apr 2013 10:39:45 -0500

Over the past year, we have begun to see fashion brands truly embracing digital media.

Instead of bloggers just taking up space in the front row of runway shows, we see more and more brands connecting with the public by live streaming their shows, encouraging their audience and models to tweet the images of the shows and (gasp!) even offering some of the items shown on the runway for sale when the show concludes.

And change isn't just for couture -- NBC's "Fashion Star" is a game changer. Silly mentors with crazy outfits asides, the show has changed the way America interacts with television. Fashion Star moved the needle so now its is unclear where entertainment, fashion, digital and commerce begin or end.

You might be reading this and saying so what? My brand's not couture and I have no desire to display my project on a runway on reality TV -- what does this post have to do with me?

Because you don't have to have be runway ready to harness the power of visual storytelling.

Not to sound like a broken record, but as you have heard me say before, the Internet has democratized fashion. The traditional gatekeepers are gone and you have direct access to your customers and the unique ability to create fans and followers.

Fashion is a visual medium and you now have more tools then ever to share your brand's story.

Think about it.....would you rather see a picture of a fabulous outfit or read a description? Would someone rather read an instruction manual or watch a YouTube demonstration? Do you learn better when someone tells you or shows you?

Depending on your target customer, you can select Pinterest, Tumblr, Facebook, Vine, YouTube or Instagram. You even can effectively use a combination of platforms to drive engagement.

Now shhh.....I am going to let you in on the secret of success:

Be authentic

I know your brand has a story to tell -- you wouldn't be successful otherwise. So, how will you uses images to tell that story?

xoxo

Staci

photo credit: hubspot.com/blog/tabid

for some stats showing visual storytelling works, click here

Fashion Law 101: Creating a "Strong" Trademark

Staci Riordan — Tue, 23 Apr 2013 12:18:22 -0500

Guest post by: Lindette Hassan, Esq.

When creating a fashion line, it is important to be just as original and creative with the name as it is to be with the clothing. From an intellectual property perspective, the strongest names or trademarks get the most protection, and when deciding on a mark, creativity and originality are key.

With regard to creativity, marks generally fall into one of four categories:

fanciful or arbitrary;
suggestive;
descriptive; or
generic.

The strongest and most easily protectable marks are fanciful marks and arbitrary marks. Fanciful marks are words created for the sole purpose of being a trademark, such as XEROX for copiers.

Arbitrary marks are words with a common meaning that has no relation to the goods or services being sold in connection with the mark, such as APPLE for computers.

Suggestive marks suggest a quality or characteristic of the good or service being provided in connection with the mark, such as COPPERTONE for sunscreen. Suggestive marks are also considered to be strong and registerable.

Descriptive marks describe the goods or services being sold in connection with the mark. Descriptive marks are considered “weak” and hard to protect. In fact, descriptive marks are not federally registerable unless they have acquired distinctiveness, which usually happens by use and heavy marketing of the mark for more than five years.

Generic marks are common names for a type of product made by multiple companies, such as clothing, soda, or chocolate. Words used in this way are not distinctive and do not point to a particular company as the source of a product or service. Generic marks are the weakest marks and are not protectable.

At the end of the day, when picking a name for your fashion line, the best thing to do is to either (A) make up a word (fanciful mark), (B) select a random word (arbitrary mark), or (C) use a word that suggests a characteristic of the fashion line (suggestive mark).

So, while brain storming for the perfect name for your brand, just remember......creativity is key!

Ethically Wrong? New Law to Criminalize Purchase of Counterfeits

Staci Riordan — Tue, 16 Apr 2013 10:32:36 -0500

It may come as a great of a surprise to you as it did to my Loyola Fashion Law class:

It is illegal to sell, distribute or manufacture counterfeits. But it is perfectly legal to purchase them.

After my class got over the shock, we had a fabulous discussion (best of the semester in my opinion) about the ethics of buying counterfeit products, and compared that action to how society looked at illegally streaming or downloading music or movies.

Last week, NY City Council woman Margaret Chin proposed new legislation that would amend New York's administrative code so that anyone caught purchasing a counterfeit product would be subject up to a year in jail and have to pay a fine of $1,000 fine. Chin previously introduced similar legislation in 2011, but it died in the City Council.

Like my class, I am conflicted over this issue and question whether new legislation is needed.

Let's be clear. I do not support counterfeits. In many industries, like pharmaceuticals or consumer products (think tires or water bottles), counterfeits have the potential to poss serious risk to your health, safety and well-being.

That said, I have read the MIT study that show that almost half the purchasers of counterfeit fashion products subsequently purchased the authentic version.

And from listening to the passionate discussion in my class, most didn't regret buying counterfeit fashion items stating luxury brands mark up their products so much, what's the harm?

When we compared purchasing fashion counterfeits to illegally downloading or streaming music and/or movies, the overwhelming majority of my class felt more guilty about pirating music and/or movies than buying counterfeit fashion products.

Interesting, when we discussed online purchases verse in person purchases, my class thought those who purchased online should not be punished, as they are less likely to know the item is counterfeit (although some vocal dissenters said the price of the item and which website you were on should clue you in.)

Perhaps threats of fines or jail will change the attitude and behavior of the buyers. But compare our "war on drugs." Has that really stopped, or even decreased, the drug trade?

In the end, throwing tourists visiting canal street in jail won't will drain the city of its counterfeit problems. The new law could harm tourism, which is New York City's largest industry, and be a PR nightmare.

New York, and other cities around the world, LA included, face an moral dilemma. As a society, we need to take a hard look at what drives consumer purchasing behavior and weigh the best possible steps to effectuate change.

Announcing new laws relating to fashion is a great PR play.

But don't forget, at issue is ethics. And I am not sure our country's politicians always have the best moral compasses.

xoxo

Staci

ps -- you can read more of our tips, thoughts and advice for protecting your brand against counterfeiting here.

INTA The Woods

Staci Riordan — Fri, 05 Apr 2013 18:22:03 -0500

Hi everyone. I hope your April is off to a good start!

So, while you may be used to us giving you advice, tips and inspiration, today we are going to turn the tables and ask you for help and input.

The Fox Fashion Lawyers have decided to attend the annual meeting the International Trademark Association (INTA) in May 2013 and this year's conference is in Dallas, Texas. (and yes, just so you are not confused, Fox Rothschild lawyers have attended, but it is a first us in the Fashion Law Practice group).

We were told that the conference can be overwhelming and there is lots to do and see. That is why we thought we would pick your brain (for a change) and see if you had advice for us (see, this is fun. You can be a fashion lawyer for a day -- yay!)

We know INTA will be a great (and fashionable!) experience but wanted to make sure we properly prepared, and didn't miss the perfect tree in crowded woods.

So, any tips, insight or keys to a successful conference are most welcome. Please feel free to post in the comments or email us.

Thank you SO much in advance.....and

xoxo

Staci

(sorry, I couldn't resist.)

Fashion Law 101: Form I-9 (revised)

Staci Riordan — Sun, 31 Mar 2013 11:55:48 -0500

Guest Post by Alka Bahal

So, as you savvy fashion brand owners or HR managers may know, all U.S. employers are required to complete a Form I-9 for every employee hired in order to verify that the individual is authorized for employment in the United States under the Immigration Reform and Control Act of 1986 (IRCA).

Earlier this month the U.S. Citizenship and Immigration Services (USCIS) published a revised Employment Eligibility Verification Form I-9 for immediate use.

This "new and improved" form replaces all other forms and should be used from now forward for all new hires and reverifications.

If you haven't been using the new form, don't worry -- the previous edition of the Form (with an OMB control number expiration date of August 31, 2012) is valid until May 7, 2013.

So, what new and great improvements has our government given us with the new Form I-9?

There are new data fields, a revised format that expands the form to two pages, and clearer instructions to both employees and employers, which hopefully will make the form more user-friendly.

The new Form I-9 and List of Acceptable Documents is available on USCIS’ website in English and in Spanish. (Note, however, that the Spanish version of the Form may only be executed by employer’s in Puerto Rico; Employers in the 50 states, Washington, D.C., and other U.S. territories may use the Spanish version of the Form as a translation guide, only, but must complete the English version of the Form.)

USCIS has also updated its Handbook for Employers, Instructions for Completing Form I-9 (Employment Eligibility Verification Form) (Form M-274), it’s companion instruction booklet for the I-9 process.

Why does this matter?

Employers must ensure completion of the correct version of form I-9 and maintain their I-9 records as mandated by Regulation. Form I-9 records must be available for inspection upon request by U.S. Immigration and Customs Enforcement (ICE), the Department of Justice Office of Special Counsel for Immigration-Related Unfair Employment Practices, or the Department of Labor.

What happens if I use the wrong form after May 7, 2013?

In general, if an employer fails to ensure proper completion and retention of I-9 forms, you may face imposition of civil money penalties, and, in some cases, criminal penalties on the employer and/or its responsible personnel.

With respect to this new version of the Form I-9, employers who keep using the old version after May 7, 2013, may be subject to penalties for failure to do so.

So, what’s the best practice?

Start using the new edition of the form immediately.

Fashion Law 101: CALIFORNIA BROADENS THE PROTECTIONS FOR PREGNANCY (PUN INTENDED)

Staci Riordan — Fri, 29 Mar 2013 11:28:25 -0500

Guest post by Nancy Yaffe. It originally appeared on Fox Rothschild's California Employment Law blog.

We already know that California law for pregnant employees is much more generous than other states. Pregnant women here can get up to seven months of protected time off, with insurance benefits and reinstatement; that is up to four months off for pregnancy disability leave (PDL) in addition to twelve weeks off for baby bonding under the California Family Rights Act (CFRA).

But what happens if a woman is disabled by pregnancy and needs more than four months off? What if she is put on bed rest early in her pregnancy and uses her PDL pre-birth? The regulations still indicate that an employer “may” advance CFRA baby bonding leave pre-birth, so doesn’t that mean it is optional? Or what if she is not eligible for CFRA leave at all (perhaps she has not worked for a year or your company does not employ 50 people); are you safe to terminate her after four months of PDL?

One would think the answer to all of these questions would be YES, but alas, this is California after all.

A recent California Court of Appeal case (Sanchez v. Swissport) answers a big bold NO to all of these questions, and holds that four months of leave may not be enough.

Rather, the employer has a duty to engage in the interactive process under the California Fair Employment and Housing Act (FEHA), and may need to provide additional time off for a pregnant employee as a reasonable accommodation.

Notably, in the Sanchez case, the employee did not have a claim under PDL because she got four months off. Instead, the Court ruled that she could state a claim under the FEHA which governs disability leaves. A finite leave of more than four months could be a reasonable accommodation under the FEHA (even for a pregnancy related leave), and this employer had not met its obligation to engage in the interactive process on that issue prior to termination.

And lest we forget, failure to engage in the interactive process is a separate-and-distinct claim under the FEHA.

The lesson: Rights for pregnant women begin with PDL, but certainly do not end there.

ABA Fashion Law Panel Invite - Thursday, April 4, 2013

John Witts — Tue, 26 Mar 2013 11:34:23 -0500

In the past year, the $350 billion fashion industry has not only captured a share of your income, but has also seized the attention of the nation's courts. Controversial decisions have been issued in a variety of cases — from Christian Louboutin and Yves Saint Laurent's epic battle over red soles, to Marilyn Monroe and the right to use the image of arguably the most famous American "blonde." 2012 even saw Apple and Samsung square off over whether a rounded corner design can be copied.

I bet you are sitting there asking yourself - Staci, what in the world smartphones and stilettos have in common?!

Well, I will tell you.....but just not just yet! You'll need to join me at the American Bar Association's 28th Annual Intellectual Property Law Conference in Arlington, Virginia.

I am honored to be invited to join a team of IP professionals and practitioners who are coming together from around the world to share and discuss the most critical issues in IP law.

During our panel discussion, "The Blonde, the Red Shoe, the Round-Cornered Rectangles: Debating the Frontiers of Trade Dress Law," we'll share insight and ideas into these issues through a series of lively debates that will explore these pivotal cases.

Please join me and my fellow panelists (listed below) analyze whether trade dress protection was properly granted by the courts, and whether as a nation, we have the proper policies in place to protect designs, prevent copying and encourage competition.

Click here for more information about the 28th Annual Intellectual Property Law Conference.

Moderator:
Hon. Linda Kuczma, U.S. Trademark Trial and Appeal Board

Speakers:
Staci Jennifer Riordan, Partner and Chair, Fashion Law Practice Group, Fox Rothschild LLP

Michael J. Allan, Partner, Steptoe & Johnson LLP

Christine Haight Farley, Professor of Law, American University, Washington College of Law

Belinda J. Scrimenti, Partner, Pattishall McAuliffe

Welcome Remarks:
Robert O. Lindefjeld, General Counsel and Chief Intellectual Property Counsel, Nantero, Inc.
Chair-Elect, ABA Section of Intellectual Property Law

Crystal Gateway Marriott Hotel
1700 Jefferson Davis Hwy
Arlington, VA, 22202

Click here to register!

Fashion Law 101: H-1B Visas

John Witts — Mon, 25 Mar 2013 11:10:47 -0500

Guest Post by Alka Bahal

Fashion Brands beware! The clock is ticking and you just might miss your chance to obtain or keep that talented foreign designer you desperately need.

Why?

Because you need an H-1B visa in order to employ foreign national.

Just in case you don't know, the H-1B is a versatile nonimmigrant visa for U.S. employers to hire professional employees, which means it is used for workers with at least a U.S. Bachelor degree (or equivalent). In the fashion industry, the visa is often used for occupations such as designers, models, executives, logistics and manufacturing professionals, etc. The visa carries a “prevailing wage” requirement, which means that the employer must pay the worker a mandated minimum salary set by the Department of Labor.

AND the U.S. Citizenship and Immigration Services (USCIS) anticipates that the H-1B cap for the upcoming fiscal year will be reached by April 5.

The announcement states:

“Based on feedback from a number of stakeholders, USCIS anticipates that it may receive more petitions than the H-1B cap between April 1, 2013 and April 5, 2013. USCIS will monitor the number of petitions received and notify the public of the date on which the numerical limit of the H-1B cap has been met. This date is known as the final receipt date. If USCIS receives more petitions than it can accept, USCIS will use a lottery system to randomly select the number of petitions required to reach the numerical limit. USCIS will reject petitions that are subject to the cap and are not selected, as well as petitions received after it has the necessary number of petitions needed to meet the cap. The lottery for the H-1B cap was last used in April 2008.”

What does this mean to you?

In plain English, there are only a very limited number of new H-1B visas available (65,000 total) and once this number is reached, there will be no more issued until October 1, 2014.

Am I out of luck if I haven't filed yet?

Probably, BUT here is what you can do moving forward:

An employer may file an H-1B petition as early as six months in advance of the anticipated start date, which means that an employer may file an H-1B petition for a cap subject worker as early as April 1, 2013 (for a start date of Oct. 1, 2013). Based on current predictions, however, if you don’t have a petition filed by April 5, you’re probably out of luck for this year. You can also file H-1B cap subject petitions under USCIS' expedited processing, premium processing, but USCIS has announced that premium processing for such petitions will not take effect until April 15, 2013, in anticipation of the high volume of H cap subject filings, so premium process will not help you secure a visa number ahead of any other filings

So in sum, if you have employees on other visas or prospective employees who need an H-1B in order to keep working, you better move fast and file the H-1B visa petition is now (or risk losing the employee).

And if you can’t get a petition file in time and the cap is reached, plan to re-start the process again next February (put this date on your calender NOW!) so you can be on time to file on April 1, 2014 for the October 1, 2014 issue date.

*Image courtesy of dan / FreeDigitalPhotos.net

Fashion Law 101: Take time to Smell the Roses

Staci Riordan — Wed, 20 Mar 2013 11:59:24 -0500

As you all know, the business of fashion is tough. We all seem to be engaged in constant struggles - be it to create the next hot look, sell product, ship on time or sell-through. And once you make it through a fashion cycle, there is no time rest....it just starts all over again.

So when you have success or an accomplishment, you need to pause for a moment and enjoy it. Recently, I was able to watch Greg LaVoi and his fabulous team debut the first collection from Irene By Greg LaVoi during Los Angeles Fashion Week.

Photo Credit: Volker Corell

(For full disclosure, Greg is a firm client, which means I was able to watch the company from inception to runway. Irene by Greg LaVoi did not request, nor was involved in this post. The views reflected herein are solely mine.)

Photo Credit: The Recessionista

Sitting there, during the Irene by Greg LaVoi show, was akin to watch a family member graduate. I was so proud.

But this post is not about me -- it is about what your brand can learn from Greg and his team. They put in sweat, blood and tears, and preserved through multiple challenges and curve balls to accomplish an amazing victory.

This post started by acknowledging the challenges of the fashion business, but you need to remember that fashion will also give you moments of great joy, pride and satisfaction. Especially when you accomplish a seemingly insurmountable task.

And when that happens? You need to pause for a moment and enjoy it. Smell the roses, as the saying goes. Or as in Greg's case, kick back and read about your success in the California Apparel News.

Photo Credit: Greg LaVoi

Congratulations again to Greg, Melissa and Emilio, and to Pamela and Eddie as well. You deserve to savor this moment, which if my hunch is correct, is only the first of many victories in your future.

And for the rest of you out there, take a moment from the craziness and reflect on your achievements. Hard work deserves reward.

xoxoxo

Staci

Reminder: MAGIC Panel invite - Tuesday, February 19, 2013

Staci Riordan — Mon, 18 Feb 2013 12:36:39 -0500

Well, we are packed up and headed to Vegas, along with so many of you.

I hope you have some time to join me at the interactive Panel, "How To Expand Your Brand Through Licensing." It will be held in the Las Vegas Convention Center on Tuesday, February 19 at 2:30pm, room S-229.

My fellow panelists and I will discuss building your brand through the power of storytelling, the use of authenticity, and incorporation of social media, among other topics. The seminar will be moderated by the fairy godmother of fashion, California Fashion Association executive director Ilse Metchek and the panel will include:

Rick Cytrynbaum, CEO,Modern Vintage/House of Harlow 1960
Chris DeMoulin, President, Licensing Advanstar
Monte Henige, CEO, Tru Fragrance
Todd Kaufman, Director of Brand Management, Beanstalk Inc.; and
ME! Staci Riordan, Partner and Chair, Fashion Law Practice Group, Fox Rothschild LLP

We hope to see you there!

xoxo

Staci

ps -- for all you Fashion Law enthusiasts, this is a perfect time to meet in person and ask your questions.

Fashion Law 101: What your brand Can Learn From Godaddy's Superbowl Commercial

Staci Riordan — Wed, 13 Feb 2013 12:17:02 -0500

Guest Post by Tamarra Holmes

For startups, deciding on a name is one of the most important business decisions you will make early on. Your company's name will be a part of your brand, and ultimately, your reputation.

In today's super-connected world it's more important than ever that everything about your brand is a part of your story. Your name, your logo, your website--they all have to work cohesively to connect, and ultimately, sell your brand to the customer.

A great example was seen during GoDaddy.com’s Super Bowl advertisement featuring super-model Bar-Refaeli and America’s new favorite nerd, Walter. GoDaddy.com awkwardly encouraged viewers to match "sexy and smart" in order to create the perfect name for Bar-Fefaeli’s and Walter’s company’s website. After Bar-Refaeli spent 30 seconds tongue-tied with Walter, their new tagline, "When sexy meets smart your small business scores" flashed across the screen.

While GoDaddy's approach may have been a bit of a turn off to some, their message was spot on:

Define the ideals behind your company’s brand;
Use those ideals to name it, shape it and package it; and
Lastly, do something to make your brand memorable to your customer.

And the spot worked, right? We just told you a story about their brand. To watch the video, click below.

On the Road to Magic.....

Staci Riordan — Mon, 11 Feb 2013 13:13:55 -0500

I hope everyone had a great #Grammy week, and for those of you east coasters, you survived Nemo!

I know we confused some of you with our #FRBranding tweets on Friday so let us explain. Fox Rothschild held a private event in honor of Grammy week that started with a panel discussion titled, "Winning Strategies For Building an Empire of Brand Equity." @Macala and I tweeted wisdom shared by:

Alex and Ani CEO, Giovanni Feroce (@giovanniferoce);
Common CEO, Dan Burrier (@Dburrier);
Amusement Park Entertainment CEO, Jimmy Smith (@TweetsFromAP);
Blair Underwood (@BlairUnderwood);
Christy Haubegger, Head of CAA Branding and Lifestyle Division; and
Darrell Miller, Fox's Entertainment Department Chair.

Now, for those of you branding enthusiasts not involved in Grammy week, never fear! WWDMagic/Project/ENK is next week, and we are holding a branding seminar just for you.

Please come join me in the Las Vegas Convention Center on Tuesday, February 19 at 2:30pm, room S-229, where my fellow panelists and I will discuss building your brand through the power of storytelling, the use of authenticity, and incorporation of social media, among other topics. The seminar will be moderated by the fairy godmother of fashion, California Fashion Association executive director Ilse Metchek and the panel will include:

Rick Cytrynbaum, CEO,Modern Vintage/House of Harlow 1960
Chris DeMoulin, President, Licensing Advanstar
Monte Henige, CEO, Tru Fragrance
Todd Kaufman, Director of Brand Management, Beanstalk Inc.; and
ME! Staci Riordan, Partner and Chair, Fashion Law Practice Group, Fox Rothschild LLP

We hope to see you there!

xoxo

Staci

ps -- for all you Fashion Law enthusiasts, this is a perfect time to meet in person and ask your questions.

Lululemon and Calvin Klein's Settlement Over Yoga Pant Design Patent Stirs Interest In Oft Neglected Design Patent Protection For Clothing

Staci Riordan — Mon, 28 Jan 2013 12:46:24 -0500

Guest post by Tom Chan, Esq.

The entire fashion community is talking about Lululemon's recent design patent infringement suit against Calvin Klein, wherein Lululemon claimed Klein violating its rights in its iconic "cross-over waistband."

The recent settlement between Lululemon and Calvin Klein is stirring up renewed interest in design patent protection for apparel brands.

Contrary to common misconceptions, design patents should be an arrow in every fashion designer's quivers because they are:

· inexpensive to obtain, about $2,000-2,500, including fees and costs, around the cost of a trademark registration.

· easy to get: almost 90% are allowed and around 80% do not even receive an office action,

· often granted in 6-8 months, faster than trademark applications and comparable to copyright applications.

Oh, and the best part? Recently, we have successfully avoided the cost of technical drawings by using a digital picture instead.

And there is more good news: protecting your design patent in court posses less challenges than protecting other types of IP your brand may own. For example:

· unlike in a trademark infringement case, a costly survey to show confusing similarity is not needed; and

· unlike in a copyright infringement case, the designer does not have to prove access and the USPTO will not reject the application because it is an utilitarian article.

Now, to give you the full picture, you need to know there are some disadvantages, which include: most garment employers/principals do not have the proper pre-employment agreement to vest the title of the fashion design patent in the employer/principle, since unlike the work for hire concept in copyright law, the employer only has a “shop right” in the design patent, which amounts to an implied nontransferable paid-up license from the creative employee; only registered patent lawyers can apply for design patents, even though a design course is not a prerequisite for qualifying to be a registered patent lawyer, instead science/engineering lab courses are required; and styles change so quickly in fashion, so you need to have "staple" or iconic pieces in your collection.

Other brands besides Lululemon are successfully using design patents to protect their items. For example, Nike aggressively protects its shoe designs using design patents and files many design patents. This Nike's Design Patent No. D659,988 was issued after less than three-months.

Yet, many fashion lawyers are not familiar with design patent law, giving design patent plaintiffs a leg up, and many fashion designers do not have an ongoing relationship with a patent litigator who the designer can call on to show up in federal court on 24 hour notice to defend a TRO.

So don't be stuck in down-dog; instead try a sun salute, center your third eye and remember to consider design patent protection to keep your brand in top shape.

Reminder: Fashion Law Panel at UC Hasting School of Law

Staci Riordan — Wed, 16 Jan 2013 15:45:06 -0500

I know you all are busy, but here is quick reminder to you Northern California fashion law fans to join us tomorrow night at the University of Hastings, College of the Law which will host its inaugural Fashion Law event.

The details:

Time: 6:00 - 7:15pm
Location: Alumni Reception Center in Mary Kay Kane Hall, 200 Mc Allister Street, Hastings campus
Cost: Free
RSVP: Not required

Reception to follow

See you there!!

Fashion Law 101: Don't "Bamboozle" the FTC

Staci Riordan — Mon, 14 Jan 2013 10:45:51 -0500

Last week, WWD reported that the Federal Trade Commission ("FTC") issued over $1.26 million in fines to Macy's Inc., Sears Roebuck and Co., Amazon Inc and Leon Max Inc. for violations of:

the Textile Products Identification Act and the FTC’s textile rules by labeling and advertising products sold in stores and online as made of bamboo when they were made of rayon.

Yikes!

And to make matters worse, for two years before the retailers were fined, the FTC repeatedly sent them warning letters to stop mislabeling rayon products as bamboo, but the retailers either didn't care or didn't want to listen.

Well, being ignored for two years made the FTC see green, and so it issued the above mentioned 1.26 million dollars in fines while stating:

'When attempting to appeal to environmentally conscious consumers, companies need to ensure they don’t cross the line into misleading labeling and advertising,' said Charles Harwood, acting director of the FTC’s Bureau of Consumer Protection. 'If a textile is made of rayon, sellers need to say that.'

Now, for those of you unfamiliar with the FTC's role in the Fashion Business, it acts as a watch dog to protect customers from a variety of evils. In its own words it goals are:

tp prevent business practices that are anticompetitive or deceptive or unfair to consumers; to enhance informed consumer choice and public understanding of the competitive process; and to accomplish this without unduly burdening legitimate business activity

In sum, the FTC makes sure companies don't trick customers into purchasing something that purports to be something else.

Besides fiber content, it famously monitors "Made in the USA" claims, Registered Identification Numbers ("RN"), and most recently issued rules governing fashion bloggers, to name a few.

The take-away here? Don't ignore warning letters, and don't believe everything "green is good."

I can only imagine how the econ-conscious customers must feel! (ok.....,you guessed it, bamboozled.)

Get this Shirt From Snorg Tees

New Year, New Events: UC Hastings Fashion Law Panel

Staci Riordan — Thu, 10 Jan 2013 12:25:48 -0500

The new year is always a chance to start fresh. Where it be with a new season of offerings for your latest tradeshows, for resolutions or for other personal goals.

In this very first month of 2013, I invite you to join me at a new event: the First Ever Northern California Fashion Law Panel at UC Hastings on January 17, 2103.

The panel, moderated by Fashion Lawyer Uduak Oduok, will provide an overview of the issues fashion lawyers face, discuss the interplay of fashion law and the business of fashion, and provide you with information on how to join this growing practice area.

My fellow panelists include:

Brian Scheyer, Fashion Designer of leading San Fransisco based brand Gr. Dano
Mariessa Terrell, an attorney at SBC Law Group and former trademark attorney for the US Patent and Trademark Office.

The details:

Time: 6:00 - 7:15pm
Location: Alumni Reception Center in Mary Kay Kane Hall, 200 Mc Allister Street, Hastings campus
Cost: Free
RSVP: Not required

Reception to follow

See you there!!

And, yes, this will be on the same day as Loyola Law School launches its inaugural Fashion Law class. Can't wait to fill you in!!!

xoxo

Staci

Fashion Copyright Bill Dies in Congress

Staci Riordan — Thu, 03 Jan 2013 14:27:26 -0500

I hope everyone had a great holiday season and for those of you in the office, are having a smooth transition back.

2012 came to a crazy year end for Congress, and while they may have resolved the income tax portion of the fiscal cliff, they postponed the rest of the open issues until 2013. We'll have to wait and see how that drama plays out in this first quarter. But here is the good news: the Fashion Copyright Bill, currently known as Innovative Design Protection Act of 2012 (S. 3523) (IDPA) or the Destruction of Affordable Fashion Act as we call it here at the Fashion Law Blog, has (once again) died in Congress.

Why? Because the 112th Congress has ended and the bill was not passed into law.

What does that mean for the Fashion Industry?

The status quo remains, at least for now. My guess is CFDA darling Senator Schumer will introduce some form of the Act for a seventh time in this next session as this is one piece of legislation that just keeps desperately trying to live another day.

Fashionable New Year: 2013

Staci Riordan — Mon, 31 Dec 2012 20:59:59 -0500

From all of us here at the Fashion Law Blog, we wish you a year filled with prosperity, health and happiness. Hopefully, you will use all you learned in 2012 to become better, stronger and more profitable, as well as more thoughtful towards your fellow workers, customers and neighbors.

Over this holiday, remember, take some time for yourself - reflect on what went well and what you want to make better. Amidst the celebration, now is the time to start your list of goals for 2013 and thinking of your game plan to accomplish them.

Lastly, we want to thank you for your support, your feedback and your encouragement. We appreciate you, and are grateful for your time.

xoxo

Staci

Fashion Law 101: What Fashion Brands must know about the Fiscal Cliff

Staci Riordan — Fri, 28 Dec 2012 13:47:12 -0500

With all the holiday fun and festivities (and ongoing 2013 tradeshow preparation), I doubt you want to read about fashion finance, but we would be remiss if we didn't heighten your awareness to the unresolved "Fiscal Cliff" situation in Washington.

(if you are a creative type and your eyes glaze over at the mention of budgets, spreadsheet and statistics, skip to the last paragraph. Everyone else, read on.)

Yesterday, our friends at Fashionista in a post entitled, "The Fiscal Cliff: What is it and What it Means for the Fashion Industry," gave a fashion friendly definition of what the fiscal cliff is:

Fiscal cliff, a term coined by Federal Reserve chairman Ben Bernanke, basically means that right now, we’re Wile E. Coyote chasing the Road Runner, and if the government doesn’t supply a safety net we might just fall into deep financial sh*t in 2013. We’re about to experience the biggest tax increase in history. And the budgets of a ton of government programs are about to be cut.

Now, before we talk about what happens if we fall off the cliff, here is an overview of where the we are today:

Reports show that 2012 holiday sales were the lowest since 2008, showing 0.7% growth when the National Retail Federation predicted at 4.1% growth;
The Consumer Confidence index is at an all time low; and
The Stock Market continues to drop in light of the uncertainty in Washington.

This means Retailers are stuck with excess inventory, will run sales to get rid of it, and may post-pone, decrease or cancel orders scheduled to arrive in January and February.

So what happens, in general, if we fall of the cliff?

Consumers will have less disposable income because income taxes will increase for most of us, and payroll taxes will increase, meaning you will be bring home less in each paycheck.
Also, since certain tax credits and allowable deductions will be eliminated, and the Alternative Minimum Tax will apply to more people, your 2012 tax refund will likely be lower.
Lastly, because the government will be scrambling to fix this mess in the first quarter, people who usually file their tax returns early won't be able to do so given all the uncertainty, which again means less disposal income available to consumers.

So, what will this mean for the Fashion Industry?

Given we are already seeing lower consumer spending, if we fall off the cliff, people will spend even less. Which means retail orders will decrease, wholesale orders will decrease and the liquidity of fashion brands will suffer.

And, if the government doesn't fix this soon, you'll see fashion brand closures, layoffs and down-sizing in the related service industries, especially in advertising and marketing. Experts vary whether the results will be like those seen in 2008, or worse.

So, here's to hoping Congress can stop acting like pre-schoolers defending their favorite toys and get to work making sure our economy continues its slow, but steady recovery.