Fashion Law : Fashion Lawyer & Attorney : Fox Rothschild Law Firm : Licensing, Intellectual Property

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 Baz 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 collection, 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? 

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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

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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: 

1. fanciful or arbitrary;
2. suggestive;
3. descriptive; or
4. 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!

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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.

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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

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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!!

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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

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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

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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.

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Happy August everyone.  Since August equals back to school for all us garmentos, I thought it an appropriate time to get school related advice. 

I am in discussions with a top Southern California Law School to teach a Fashion Law class, and if it goes well, to help design a Fashion Tract as a subset of its Entertainment program.

For the first "proof of concept" class, as my fashpreneur like to call it, I am debating how to structure the class and would love your input.  Should Fashion Law 101 be:

• A survey class that touches on all things you need to know as a fashion lawyer.  In other words we would cover a wide range of topics, but each topic wouldn't be in-depth; or
• A class that follows the typical life-span of a fashion brand, that provides hands-on training on how to perform the day to day duties of a fashion lawyer.

My hunch is the first time I teach, it would have to be a bit of both, but in the future, I see the above as Fashion Law 101 and Fashion Law 102.  What do you think?

Also, in either class, what would you want to learn?  If you are a law student, what topics would you want to cover?  If you are a practicing lawyer looking to transition from your area of practice to Fashion Law, what do you wish you learned in school?  If you are a fashion brand, how should your lawyers be trained to better meet you needs?

Looking forward to all your feedback! 

(And keep your fingers crossed)

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As you know, I often draw inspiration from music, and am convinced that music and fashion are explicitly intertwined.

Fashion, like music, is a form of entertainment and music, like fashion, has an incredible impact on trends.  Today, like never before, we are seeing musicians use their innate power to extend their own brand as well as the brands of those they choose to partner with.

No one is doing this better right now then Pitbull.

The son of Cuban immigrants, Pitbull had a challenging childhood in America.  Today, he is a multi-national brand.  Not only is Pitbull a Grammy nominated artist, but he hosts his own TV show, endorses Kodak and Dr. Pepper and co-found Bad Boy Latino with Sean Combs.  

So how did he do it?

He started out in his target market – Miami rap – first in English and then in Spanish.  Pitbull successful grew his fan base by partnering up with other artists that helped him expanded his audience, such as the Reggaton phenomenon Daddy Yankee [another great example of cross-marketing success!],  T-Pain, Akon, Lil’ John and Jennifer Lopez’s in her latest hit single, On the Floor [Video].  And he made me fall in love with the Euro Dance sensation “We Don’t Speak Americano,” with his version Bon, Bon.  Recently, Pit was tapped to write and perform the theme song for "Men In Black 3," "Back in Time." 

Back in Time is a brilliant example of brand extension.  The incorporation of "Love is Strange" from "Dirty Dancing" into the song is not only genius and good music, but is also another way to extend his brand to a different target audience.  Pretty cool, right?

With the movie posed to be this summer's blockbuster hit, its theme song will be played in houses across America.  Since Men in Black is such a strong franchise, Pit's song will be guaranteed extensive internationally distribution.   With this single collaboration, "Mr. Worldwide" will touch more people than ever before.  How's that for stretching your brand? 

What creative steps can you take to extend your brand?  I challenge you to think outside your current channels and methods of distribution.  How can you reach a whole new audience and make them raving fans?

While you think about it, listen to "Back in Time" for Inspiration.

Photo credit: ClubPlanet.com

Music Video: Huffington Post

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My family and I just return from a Club Med vacation in Ixtapa, Mexico.  We are huge fans of the resort, and the company. 

I remember going to Club Med as a teenager.  I later went when I was a single twenty-something.  Now I go with my family and hopefully one day, my children will take their families.

Club Med has successfully created an international brand that targets a wide age demographic.  It has also managed to grow and adapt the brand from being rustic and single oriented to upscale and family friendly.  Club Med has shown an uncanny ability to change with the times and stay relevant, without losing its identity or true essence. 

By hiring talented people (GO's) who provide guests with an outstanding experience, Club Med creates raving fans who then share tales of their vacations with others.  Statistics show that the number one place people currently spend their disposal income is on vacation travel. 

It has also embraced social media to interact with its guests once they return home.  Club Med has a facebook page, twitter feed and You Tube Channel just to name a few.  You also can download its "crazy signs" songs on itunes or Amazon - WOW!

Now, why are you reading about this on a Fashion Law Blog?

Because to become a lifestyle brand, your company needs to take a page from Club Med's play book. 

• Are you connected with your target market? 
• What are you doing to adapt your services as the needs of your target market changes? 
• How are you going to diversify and make your company recognizable beyond your intial target market? 
• How are you going to be more than just a provider of a product, and instead make an emotional connection with your market to become a brand?

And if you really want succeed in today's market place and become a legacy brand, your Fashion Company needs to find a way to connect with its customers like Club Med has.  You need to employ passionate, enthusiastic people to share your company's message (compared to sell), and it needs consistent branding so you carve out your niche and visibly stand out from the masses. 

I challenge you to give some thought over the holiday break to how your company can create an emotional experience for your target customer.  And it should be one that your customer raves about and longs for, even after they change their clothes.

ps -- a big thank you to Flavia, Mourad, Chef Shek, Chochu, Mimi, Lauren and the rest of the Ixtapa GO team.  We love you and can't wait to see you again!

pss -- to check out the resort, click on the You Tube videos below -- make sure to turn on your speakers!

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First, I have to start off apologizing.  This post was supposed to go up yesterday in honor of B.A.F.F.L.E.D's second anniversary.

When I first suggested to friends and colleagues that there is such a thing as "fashion law," they laughed.  Now, six years into being a practicing Fashion Lawyer (as a Fashion Litigator and doing Fashion transactions), I don't get any laughter when I tell people what I do.   Most ask:

How do I become  Fashion Lawyer too?

Once I started blogging (which has almost been for two years now, wow!), I learned that there are a group of us that are passionate about Fashion Law.  I have made so many connections online, using twitter, facebook and by reading and commenting on other blogs.

Now, not all of us fashion lawyers agree, take take similar positions or even call themselves fashion lawyers.  (no lawyer jokes, please)   But discourse and debate is what a democracy is all about. 

And if you take a step back and look at the big picture, you'll realize that Fashion Law has had enough early adopters to become a trend.  More than that, Fashion Law has tipped the scales and become a movement......or in fashion lingo, into a legacy brand!  Fashion Law even has an institute at Fordham Law School and its own state bar section in NY!

So here is a quick shout to those that helped make it happen:

• Counterfeit Chic (our senior statemanwoman, I believe)
• Likelihood of Confusion 
• Fame Appeal
• Fashion and Apparel Law Blog
• Fashion Lawyer
• Fashionista
• Fight Fakes
• B.A.F.F.L.E.D
• UDUAK LAW FIRM Blog (who just turned one!)
• And newcomer, Law of Fashion

And for all you fashion brands out there, what's the lesson?  Believe in yourself and what you are doing.  With commitment, utilization of social media and the Internet and passion, others will begin to believe.  And before you know it, you can go from a company to a legacy brand!

What movement do you want to create?

photo credit: The Blog of Jake Adams

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How much time does your Fashion Company devote to giving better customer service compared to getting new customers? 

Most companies I see spend most of their time trying to sell, or "get into" the next big retailer, instead of providing their bread and butter customers better service.  Most think, what for?  They already carry my designs.

Here are three reasons why this way of thinking is wrong:

First, happy customers talk, tweet and post about you and your brand.  Think of the goodwill you would build, and the money you could save on PR and marketing, if you "wowed" your customers on a regular basis.  Social media makes sharing experiences with friends and followers easy and commonplace.

Second, never forget the early adapters.  The stores that took a chance on you deserve your loyalty and support.  The best source of more business is from companies you already work with because they know and trust you.

Third, and finally, your customers are the best source of product development and research for future products.  Talk to your stores.  Find out what they like best about your items, what sells first and what you could do better.  This conversation will not only help you hone your future product offering, but it will you allow you to engage with your customers in a non-pushy way that shows you care about them and their business.  It also gives them a vested interested in the new products they "helped" create, similar to crowdsourcing.

How do you "Wow" your customers?  Or have you been "Wow" by a retailer lately?  I would love to hear your thoughts in the comments or via email.

photo credit: TMO News

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We are well into this weeks series on counterfeits and the fashion industry.  You understand that fashion counterfeits are harmful - socially and to your business -- and you need to fight them.  You have also taken preliminary steps such as registered your marks, done your homework on your contractors and supply chain and made the government your closest ally. 

But I received some emails yesterday from some of you wondering just what a fashion anti-counterfeit battle plan should look.  How do you fight the forces of evil?

The answer: Identify, Seek and Destroy.  [click here to listen to the Star Wars theme song while reading the rest of this]

Here is how:

Identify the scope of your plan by answering these preliminary questions:

1. What is your tolerance level?
2. What is your tolerance level?
3. What is your budget?

Seek out counterfeits:  [For Yoda's wisdom, click here]

1. Field investigators.  There are companies you can hire that will go into the stores, factories and marketplaces looking for your brand's items.  They will either  buy and/or photograph the offending item, so you and you team can respond appropriately.
2. Low cost Internet monitoring.  As discussed the past few days, you can have your staff monitor the Internet at low cost.  Be sure to follow-up with the offenders with either a cease and desist letter or take down letter or both.
3. Proprietary software.  There are soft wear companies out there, like Site Staydown, a service from online brand security firm MarkMonitor, that attempts to not only shut down knock-offs selling websites, but keep them closed.

Finally, destroy the counterfeiter's ability to manufacturer and sell:   [For Darth Vader's Theme, click here]

1. Take down notices.  As discussed yesterday, you can issue take down notices under the Digital Millennium Copyright Act, use eBay’s VERO (Verified Rights Owners) policy or other social media sites polices.
2. Writing campaigns. A simple cease and desist letter is effective, quick, and inexpensive.  For example, McCarter & English LLP partner Harley Lewin was able to reduce Diane von Furstenberg online postings of fake goods from "18,000 posts to about 1,000 in 120 days.”
3. If all else fails, litigation.  While the most costly option, you should be able get monetary damages, an injunciton and some times attorneys fees.  Your willingness to litigate signals your commitment to this battle and will likely deter future or repeat offenders.

In sum, while battling counterfeits may seem like an impossible, insurmountable task, like plugging a dam with your finger, small, purposeful, consistent steps, as shown by some of the success stories above, make a big difference. 

Remember, as yoda says:  "Try Not.  Do or Do not.  There is no try" [Video]

 photo credit:  ebay

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What exactly is a counterfeit anyway? You have likely heard the term and if you have been to Canal Street, Sante Alley, High Street, the Silk Market or a Turkish bazaar, you don't need a fashion lawyer to tell you, as you have surely seen them.

A counterfeit product is one that is made without permission of the brand owner, that the seller is trying to pass of as an original product.  In fashion, the seller will generally incorporate a brand's logo or name, which is illegal.  By doing so, the seller violates trademark law as well as federal, anti-counterfeiting law.

Interestingly, in fashion, unlike many other industries, the purchasers of counterfeit products usually know that they are buying a fake.  Even more interesting is a recent study that  show that 46% of all people who buy counterfeits end up buying the real thing.

Finally, you must know that there is a distinction between counterfeits and knock-offs.  In fashion, clothing designs do not have any sort of legal protection.  Hence the prevalence of designers paying homage to, gathering inspiration from or copying the products of another.  The fashion industry refers to these imitations as "Knock-Offs."

photo credit: For The Love Of Lily

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When I started the Fashion Law Blog, I never imagined having so many of you ask me for career advice that I would need to create a FAQ for aspiring Fashion Lawyers.

Don’t get me wrong, I love being invited to coffee across the United States (and I love caffeine) but I can’t counsel all of my clients, run FGI LA, write this blog and provide career advice to all of you without alienating my family. So, I offer the following 10 Steps to be like me, "when you grow up."  :)

1.  Law School 101

Study contracts, intellectual property, international trade (if you want to go global), securities (if you want to buy and sell companies) tax and employment.  If you are an attorney, take CLE in these areas and stay awake – the actual practice of Fashion Law is a marriage of lots of different skill sets so get up to speed on the areas of law your clients will question you upon.

2.  Learn Accounting and Basic Financial Models

OK, this one hurts, but math matters. Your clients can only pay your bills when they are making money, which means they shipped goods and gotten paid for them (usually by using a Factor).  You have to be good at math and understand Fashion math (ie profit margins, chargebacks, dilution and the difference between gross and net), to provide practical advice to Fashion companies.

3.  Learn the Business of Fashion, Not the Fashion Business

I was raised in the fashion business, so this one was easy for me to understand; it was in my DNA.  The business of fashion means what goes on behind the scenes, and not in the tents or what you see on the cover of magazines.  You must learn about each step in the process, from idea generation to the sale of a global brand, and be prepared to counsel your clients about the speed bumps they may encounter along the way. 

4.  Manufacturing and Supply Chains Drive Revenue

The best design ever won’t hit a shelf if it can’t get made at the right price, right quality and just in time to be delivered to the boutique.  Understand how garments are put together, and the supply chain that get them made and delivered, so you can deliver the goods to your clients. So much time, money and do-over’s occur in this process because new clients do not understand what is involved in bringing their designs to market. Solve problems proactively with your knowledge.

5.  Left Brain, Right Brain

Lawyers = Left Brain

Designers = Right Brain

Bridge the gap!

6.  Write clearly – Speak even more clearly

This is SO important.  Don’t write and speak like an attorney, unless you are dealing with another lawyer.  Your clients cannot take your advice, unless they understand the words coming out of your mouth or on the papers you give them (otherwise, you will be like the teracher on Charlie Brown). The art of communication is taking complicated ideas and presenting them to your audience in an understandable manner.

7.  Be the Billboard

If you dress like a slob, are you marketable?  How do you expect to get a job, land a client or succeed in the fashion world, where appearances and first impression matter, if you look like an out-of date, thrift store reject, a "Glamour don't" or a stuffed shirt?  You are your own marketing, business development and advertising agency all day, every day.  Your appearance matters and I have to tell you, dressing the part is one of the best parts of being a Fashion Lawyer.

8.  Create Value – Personally and Professionally

I characterize my approach with clients as a ‘counselor’ not merely an attorney. The difference between the two approaches is simple: I try to add value in every representation, by doing much more than documenting deals.

My clients and I work out best case / worse case scenarios, deal with the reality of executing in the marketplace and plan for the financial implications of any transaction. I also encourage my clients to call me with any questions - at no charge; proactive counseling saves clients money, and headaches, in the long run.

9.  Intern, Volunteer, Get Involved – Doing Nothing is NOT an Option

If you want to be a fashion law attorney, you must get into action. Offer to intern or volunteer in the industry, with persons or companies that one-day may be your clients. The more you learn about the business now, the better you can serve clients in the future.

Network, network network. Ask lots of questions. Do not be afraid of putting yourself out there. Sitting on the sidelines makes you an observer, not a player. Get in the game.

10.  Stay Creative

Your clients are creative; demonstrate your creativity by thinking out of the box. Creativity is a conscious act that requires time and effort.  Write, run, meditate, take long showers -- whatever stirs your creativity up so you can provide advice that is both legally solid and innovative when appropriate.  Fashion is an ever-evolving industry; don’t get stuck in ruts or old school mentality.  Don't forget to read (and watch) what your clients are so you can spot issues and recognized trends.
 

So on that note, I encourage each of you to follow your dreams.  Remember, though, the fashion business is tough, and fashion law is probably harder than any other type of law, because the field is so new.  This is especially at true in Big Law where you have large (and strict) billable requirements. 

But, nothing is impossible if you set your mind to it; and if it doesn't exist, create it.  Don't forget, people used to laugh at me when I introduced myself as a Fashion Lawyer.

Good luck!

Staci

ps -  please understand that I cannot respond to each of you individually.  I do try, so don't stop writing, but I cannot always handle the volume of inquires, informational interview requests, and invitations for lunch or coffee.  Also, if you think I overlooked something on the above list, please email me or comment so I can update it.

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Earlier today, Forbes ran an article by Susan Gunelius, "5 Guaranteed Ways to Establish Your Reputation as an Expert in Your Field via Social Media."

As this blog and other fashion bloggers have previously noted, Fashion Companies have been notoriously late to the social media party.  Fortunately, A/W 2010 was the beginning of the thaw - meaning we are starting to see brands embrace social media.  

Does your company have a social media plan?  If not, you should get going with one, before you miss a unique opportunity to connect with your target customers and build visibility and credibility with the marketplace. 

What should you do?  Start by following Susan's five tips:

1. Publish shareworthy content;
2. Go multimedia;
3. Leverage the features of social media tools;
4. Join organizations and groups; and
5. Integrate and cross-promote your efforts.

Why?  Well, as I previously wrote, social media is a game-changer.  In the past, fashion brands had to rely on retailers, buyers, fashion editors or stylists to reach their customer.  Now your company can use social media to win eyeballs, attract passionate followers and drive sales.

So what are you waiting for?  Now is the time to emerge as a leading, innovative company, on your terms.  You can do anything you set your mind to.

photo credit: LuxSecret (read the article, it's worth your time.)

ps -- if you need some more help and want to talk to some social media experts in person, on May 20, 2010, FGILA is hosting an interactive panel on how to use social media to build your fashion brand.  click here for more information and to RSVP

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Earlier this week, Above the Law (the parent of Fashionista) reported that Chicago Bar Association held a What Not To Wear Fashion Show [PDF].  While the ATL article is witty and amusing, I am shocked (and horrified) that a bar association in 2010 is basically telling lady lawyers to wear Burqas to work so they won't tempt the men.  (yes, you read that right).

The most offensive tip from Legally Fabulous:

"'Looking sexy in a law firm is disrespectful – Mary Nicolau.'  Absolutely. No one should be able to see your cleavage and your skirt or dress should be knee-length and not too tight. The partner you’re working for is someone’s husband/father/boyfriend. Show some respect. . . . In addition, never wear boots, never show your arms, NEVER wear pink, never wear clothes that reveal your body shape."

WHAT?! is she bananas or what?  While I am NO fan of slutty attire (or inappropriately tight clothing or seeing your cleavage) this is just WAY out of line.  What year are we in again?  The dark ages.  PLEASE!

Feministe responds:

Ah, yes. To protect the men! Because if an adult man spots an elbow somewhere, all hell might break loose.

Attractive Nuisance chimes in:

In sum, if you are a male lawyer, invest in a well-fitting suit (and be grateful). If you are a female lawyer, invest in a well-fitting male suit and a male who will wear said suit and speak for you, Cyrano style. . .[¶] this fashion show and all others of its kind give a completely outdated view about what is appropriate for women to do and to look like.  This is particularly clear given that the how-tos were steps to take to make sure men are more comfortable with women around them.

Preach on sister!  It is time to get rid of outdated, sexist, stereotype-perpetuating views that continue to promote gender inequality in the workplace.  

Don't interpret this to mean I am some crazy radical.   If there is no protest, how to we effectuate change? 

As I have previously discussed here, we all have many tools in our tool boxes and you must learn when it is wise to use each. 

Now, with that off my chest, I agree that there are times when you must quiet your inner fashion diva and not take a fashion risk:

• For Interviews: remember, your goal is to get the job. Dress in a manner that helps you achieve your objective, not hurt your ability to make a great first impression.  Your attire should be "appropriate," or in otherwords in line with the firm culture and the firms expectations of you.
• For Court, and sometimes for client meetings unless you are a fashion lawyer like me, you should wear a suit that is fitted properly with appropriate shoes i.e no flip-flops or sneakers (and please note, in California, heels and open toe shoes are perfectly fine, as long as they are in good taste.  Further, stockings and skirt suits are no longer required.)

The Chicago Bar's archaic panel presentation now gives me yet another reason why I am grateful that I work at a firm that smiles upon fashion, fashion law, and red pumps, and my red open-toe strappy sandals that I wear with my favorite suit.

H/T: Cassidy Saitow, Angela Jacobs and Biana Borukhovich

related posts:

Like a Lady [Daisy JD (Just Daisy)]

So What Exactly should Female Attorneys Wear?  [Feministe]

The Fashion Police [Legally Fabulous]

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Fashion changes quickly.   As Heidi Klum says, "One minute you are in, and the next you are OUT!"  Building, implementing and practicing good business strategies or "mantras" will help your apparel company succeed.  Your designs will get you in the door, but it will be your ability to operate from a business perspective that determines whether your fashion company becomes a legacy brand. 

Over the years, I have developed my "top 5" Fashion Law Mantras:

1. Always Take the Meeting.  You never know what opportunity is waiting for you, sometimes in the most unexpected places;
2. Always Get it In Writing.  The days are over where a handshake is sufficient in business, especially in the cut-throat world of fashion.  Like the honeymoon phase of dating, everyone is happy, starry-eyed and love struck in the beginning.  Then something happens -- it could be good or bad, like the company starts losing money, starts making lots of money or gets a huge order that it lacks capital to make.  Clearly drafted agreements will save you headaches and heart ache down the road;
3. Do Your Homework.  Mistakes cost much more to "fix" than to prevent.  Back to the dating analogy: take some time, get to know your business partners, suppliers, contractors and representatives.  Are they reliable?  Knowledgeable?  Passionate?
4. Work with Professionals that Specialize in Fashion.  The business of fashion is unique.  We have our own seasons, standards, time-tables and language.  For example, if you are looking for a PR firm, a social media consultant or a graphic artist, you need to work with someone who understand this business and can add value to yours -- not learn it on your dime; and

1. There is no such thing as the 30% Rule; it is merely urban legend.   For more, click here.

The details of each Mantra is a blog post in of itself (if it isn't already, one will be coming soon).  Now, I can't promise you inner peace or an enlightened state of consciousness, BUT if you make these Fashion Law Mantra's your own, your company will succeed where others fail.

photo credits: Mantaaonline and Indianetzone.com

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If you are in Los Angeles and plan on sourcing fabrics or trims next week at the Los Angeles International Textile  Show (also know as L.A. Textile 2010) at the California Market Center ("CMC"), I will there too!

I am honored to be speaking at the following two seminars:

• On March 16, 2010 from 3:30–4:30 p.m.  I will present “Legal Strategies for a Profitable Fashion Business” in CMC, suite C786; and
   
• On March 17, 2010 from 1–2:15 p.m., I will be part of the panel “How to Plan, Merchandise & Sell Your Products in a Slow Economy,” along with Dana Fried, Ken Wengrod, Sheila Hill and Bobby Hines, and moderated by Frances Harder of  Fashion Business Incorporated in CMC 13th-floor penthouse, suite 19

Please come by and say hello.  This is a another good in-person networking opportunity as well as a chance for all you aspiring fashion lawyers out there to learn more about practicing fashion law.

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co-written by Dana Shultz, Esq.

California based fashion clients often ask if they need a fictitious business name ("FBN"), which is also known as a DBA, which means “doing business as.”  Luckily, Dana Shultz of the High-touch Legal Services® Blog recently posted the answer to this question:

California Business & Professions Code Section 17910(a) states that a Fictitious Business Name Statement must be filed within 40 days of the time when the FBN first was used by the registrant to conduct business in the state.

The Statement is files with the County Clerk in the county where the registrant’s principal place of business is located in the state, or in  Sacramento County if there is no such place (Business & Professions Code Section 17915). In addition, if the registrant wishes, FBN Statements can be filed in other counties.

After the FBN Statement is filed, it must be published in a newspaper of general circulation once per week for four successive weeks (Business & Professions Code Section 17917; Government Code Section 6064).

The process is not difficult, and there is a statutory incentive to do things right: No lawsuit may be brought based on a contract or transaction entered into under the FBN until the filing and publication procedures have been complied with (Business & Professions Code Section 17918).

One word of caution, filing your FBN aka DBA (or registering your entity with the Secretary of State) DOES NOT protect your company name.  To turn your "name" into a company asset you must Trademark it.

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