Fashion is a form of art.
Art is just a way of expressing yourself.
Fashion is a trend.
It really defines a lot of people.
It touches everybody.
It's an industry that has 100% participation.
It's not a frivolity.
It's something that is a reflection of people's hopes and their dreams.
I would say fashion is never going away.
Whether it be digital stores or Instagram, there's always going to be fashion.
People are always gonna buy clothes.
Fashion's important because it stands in for who we are as individuals, as well as being
an enormous industry, from design to production to retail, and everything in between.
Intellectual property is the basis for protecting your concept and your idea, regardless of
whether you're in fashion or in any other industry.
Intellectual property is the body of law that protects the creative process.
Intellectual property is simply intangible property.
And ideas are not protectable, but artistic expression of an idea is.
So a lot of what regulates the fashion industry from a legal standpoint is intellectual property
law.
And intellectual property law basically is a mix of copyright, trademark, and patents.
Trademark law probably has the biggest impact on fashion.
It's the brand or the logo.
It can be also more than just a name.
Every great brand has a trademark: Kate Spade, Calvin Klein, Ralph Lauren, Chanel, Gucci;
all of these brands are well-known, and those names are trademarked.
The real, primary purpose of trademark law is to avoid confusion in the marketplace among
consumers.
So the purpose of trademark law isn't really to protect companies, although it does that.
It's really to protect consumers.
A trademark is anything, anything that functions as a source indicator.
It tells the customer, "oh, I know where this product came from."
It really tells companies that if you invest heavily in developing your brand, and developing
the quality of your brand, and generating consumer goodwill, that another company can't
come along and trade off of that goodwill.
So it protects both the consumer and the company.
One of the cases that I think has made more members of the public aware of fashion law
than anything else, a trademark case involving Christian Louboutin and his red soles.
Christian Louboutin is a French designer who has trademarked in the US and in a number
of other countries around the world the red sole.
It came to be very widely recognized that when you saw that red, you knew it was a Christian
Louboutin shoe.
Very expensive, very high end, the very definition of a trademark.
People saw it and they knew where it came from.
Ferrari red, Tiffany blue, I mean, there, there are a number of companies that have
established good trademark rights in a color.
And Louboutin sued Yves Saint Laurent for creating a line of shoes where each shoe was
a monocolor: red sole, but also red all the way around.
The whole shoe was red.
In Christian's case, we get shoes like this:
a classic pump, with some interesting detail.
And the red sole, which every bit as much as the signature inside the insole, shows
you, even when someone is wearing it, exactly who created this shoe.
The judge, Judge Marrero, wrote a very interesting opinion saying that color was not protectable.
And you can imagine how that affected the industry.
Tiffany wrote an amicus brief, 'cause of course the Tiffany robin's egg blue box.
You look at that box, and back to source identification, and you think Tiffany.
The designer had been enjoined, brought a trademark protection for quite a few years,
ended up losing everything because he brought the wrong case against the wrong people.
Now the Second Circuit Court of Appeals, on appeal, reinstated his trademark registration
but rewrote it.
They said, "we're giving you your trademark registration back, but it's only going to
apply to a contrasting sole."
Meaning that Yves Saint Laurent was permitted to continue to make monochromatic shoes, or
shoes that lacked any contrast, and so could everyone else.
But a very dramatic, very interesting case that pretty much left bloody footprints to
go with those red soles all over the industry.
One of the most famous marks I think is Louis Vuitton.
And that little LV carries such weight with it.
Anything that has that label's going to sell for more than if it didn't have that label.
So they really need to protect that brand.
Louis Vuitton has brought another parody case involving a different company, a company that
has created a series of canvas tote bags.
The company is called My Other Bag, and the idea is that My Other Bag have chosen a series
of different companies to include in their product.
LVMH v. My Other Bag. Louis Vuitton sued because someone had parody on their design.
And they put it in their tote bag.
This is a version of the classic Louis Vuitton 12, with the MOB's for My Other Bag replacing
the L's and V's that we would see on a genuine Vuitton.
And of course Louis Vuitton is not the only company that has been bitten, if you will,
by these bags.
And LVMH lost because the court says it's conspicuously different.
They just did a parody.
So all they did was use your design, it's a brand, and they put it on the tote bag.
And they did it as a picture, not as covering the whole tote bag as if it was Louis Vuitton.
Louis Vuitton had been pretty aggressive in their enforcement.
They tested it, and it didn't go well.
The parody question is an interesting one for fashion companies because their trademarks
are very well-known.
Their trademarks are protected very carefully because they are the primary economic resources
of the brands.
Designers come and go, boutiques open and close, but trademarks are forever.
They don't want others copying that label, 'cause that will dilute their mark and will
decrease the value.
Part of the reason why trademarks are so important in fashion is because in many jurisdictions,
including the US, fashion has so little other protection.
Very little copyright, only a tiny access to patent, but trademarks are universal.
And so even if you can't protect the entire design, you can at least protect the trademark.
A copyright is nothing more, nothing less, than the right to copy.
It's designed to encourage more artistic creation and expression by giving creators control
over what they create.
And the moment you put pen to paper to draw a drawing, or create a sculpture, or compose
a musical piece, you have a copyright in that work.
Overall, the cut and silhouette and shape of a dress is not protected by copyright law.
The rule has never been that utilitarian objects like a garment aren't protected; it's only
that they're not protected by copyright law.
You don't want copyright to protect, for example, the cut of a jacket.
Because a jacket has two arms and buttons, think of your standard blazer.
For example, Diane von Furstenberg wrap dress, the wrap dress itself is not protectable,
but the design is protectable.
The Star Athletica case dealt with a very simple question, which is, if you have a series
of shapes and stripes on an article of clothing, is that protectable?
And an employee of this company that made pretty much all the cheerleader uniforms in
the country went to another company and copied some of the designs of his original employer.
His new company was sued for copyright infringement.
And what the court did is that they looked at two different aspects of the designs.
There's the more utilitarian design, like the cut of the uniform, versus the designs,
the images that were on the uniforms.
And the court stated that the copyright wouldn't protect the cut of the apparel, but would
protect the designs.
The court basically said that if you can pluck those designs off of the cheerleader uniform,
and put them in another form, so think about your basic chevrons, and you pull them off
the uniform, and you put them in a frame, that's protectable.
Ultimately, the Supreme Court has decided that there is a separability formula or theory.
And what they determined was that if there's a two-dimensional or three-dimensional design,
and it's not part of the useful article, meaning you can separate it out, it can be subject
to copyright protection.
Was it a hugely important decision that changed the world in the US for protection of fashion?
Absolutely not.
It kind of left things where they are.
It doesn't seem to me at all to have changed what the law is.
But it should make litigating a case like that much more efficient, because it takes
away all of those extraneous tests and matters that needed to be proved, that we now know
don't need to be proved.
Intellectual property impacts every aspect of what a fashion company does, beginning
with the way products get designed, because nothing gets designed in a vacuum.
It is extremely important to retain the tiny bit of protection that fashions do have under
intellectual property law, and hopefully to grow that a little bit with time so that we
can compete more effectively.
Having a dynamic, robust public domain, things that people can refer to, is essential to
everybody, including high-end collection designers.
They're not designing in a vacuum either.
They're using references as well.
But if they didn't have those things to refer to, they would have a real problem.
Intellectual property protection in the United States is, in some ways, much better for the artists.
And in other ways, it's not.
It's very time-consuming.
It takes a lot of energy, and mostly it takes a lot of money for these emerging designers
to protect their own creativity.
There will always be cases where someone is copying a good idea.
And that's good, we want that to happen.
We want a good idea to be replicated with each company's own particular take and version
of it.
And if we don't have copyright protections, then it opens us up to complete theft of our
ideas, of our creativity, of our business model.
I think it's imperative.
And without it, we wouldn't be in business.
Your creativity, your designs are coming from within you and they deserve protection.
People a lot smarter than us have created this law that's designed to encourage more
artistic expression and creation.
Because o-overall, it benefits society to have copyright laws and trademark laws reasonably
and fairly enforced.
And there are a lot of open-ended questions about what exactly is protected.
It's in kind of an uncharted area.
The level of protection we have today is the level of protection we should have because
it is actually one of the drivers of innovation.
I really don't believe we're ever gonna have a law in this country protecting fashion.
And I don't believe it's worth wasting a lot of time on now.
Every major fashion capital in the world is in a jurisdiction that has at least some protection
for fashion.
And it's just a huge disadvantage to the American design community that we do not.
I am confident at some point in my lifetime, we will have some kind of US protection for
fashion.
But it hasn't happened yet.
I think that allowing artists and designers to reap the benefits of their work is something
that's important.
And it's something that's really essential to intellectual property here in the United
States.
And the reason behind that is we want to encourage people to get out there, create things, engage
in public discourse, and contribute in a valuable way.
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