This week in fashion law: kudos for fashion lawyers, Levi's pocket-stitch rampage, and UGG's legal campaign against... Roxette?
Fashion law, which takes up the lion’s share of this writer’s work day, definitely got its due this week. Top fashion lawyer Staci Riordan of Fox Rothschild LLP officially declared fashion law a “movement,” just six years after the mere phrase “fashion law” drew laughter from her friends and colleagues. Meanwhile, legal industry blog Above The Law interviewed yours truly about what exactly “fashion law” is, and asked whether there’s “room for other lawyers in the fashion law space.” My response: fashion usually “cannot be the sole focus of one’s practice”; however, if this week is any indication, that may soon change.
- First, fashion law acolytes saw Yves Saint Laurent fire back at Christian Louboutin in the widely followed red-sole-as-trademark lawsuit with a blockbuster of a legal brief, which LOF covered in a fair amount of detail on Thusday. To recap the major points, YSL's attorneys boldly declared that “if Louboutin were to have its way, no other designer would ever again be permitted to make an all-red shoe.” While perhaps a bit overstated, YSL correctly points out that this case has implications far beyond “prestigious” $800 shoes. While the Supreme Court has already decided that color alone may serve as a trademark in certain circumstances, there has apparently never been a case “in which a court has upheld trademark protection to a [mark, like the one Louboutin claims in its red sole] consisting solely of a single color on a portion of an article of apparel.” So depending on how this case turns out, there may be a lot more (or perhaps a lot less) work for aspiring fashion lawyers.
- The career prospects for aspiring fashion lawyers also hinge on the deliberations of a decidedly unfashionable bunch – the House of Representatives – which held a subcommittee hearing Friday morning on the latest bill that would grant copyright-like protection to some fashion designs. (As one prom dress designer recently learned the hard way -- apparently having failed to read LOF's many blog entries on the subject -- items of apparel are generally denied copyright protection on the ground that they are “useful articles.”) The legislation on Friday's agenda would change this state of affairs, granting three years of copyright-like protection to any design that contains “a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs.” Naturally, there are arguments for and against the bill, which are nicely summed up here. But at the end of the day, as LOF has argued in the past, no one really knows what percentage of designs would qualify for protection under the proposed standard. That said, it’s got to be better than the current system, where companies bring suits that are, for all practical purposes, copyright cases – but are awkwardly characterized as “trade dress” actions due to the Copyright Act’s lack of hospitality for fashion.
- But even as fashion lawyers watch the progress of the bill with bated breath, conventional trademark disputes are keeping them busy. Levi’s seemingly never-ending litigation over its 133-year-old “Arcuate” pocket-stitch design (the company has already sued Abercrombie, Polo, and Dolce & Gabbana, among many others, for allegedly coming too close to the plaintiff’s venerable curved “V”) popped up on the fashion law radar again this week, when Levi’s settled a case with Revise Clothing over the latter’s “Vanilla Star” jeans.
- Meanwhile, halfway across the world... A little bird (maybe an emu – those are Australian, right?) tweeted that 80’s music duo Roxette’s effort to register its band name as a trademark for clothing has been opposed by… UGG? It’s difficult to decide which is the more befuddling question: 1) Wait, Roxette still exists? 2) Why in the world (or at least the Southern Hemisphere) would UGG have a problem with the faded Swedish pop stars using their own group name in connection with apparel? UGG, just listen to your heart and let Roxette have its trademark.
- Now, let’s not forget: not all “fashion law” disputes are about intellectual property. For example, as Styleite reported earlier this week, a Texas woman filed suit after her employer allegedly fired her for refusing to dye her gray hair a more youthful color and wear “younger, fancy suits.” Again, this debacle could potentially have been avoided merely by reading this blog. But even so, people, this stuff is not that difficult: I mean, this was the exact storyline of an episode of the delightful but practically braindead TV show Drop Dead Diva. (Season 2, “Last Year’s Model,” if you’re curious.) In any event, to break it down for you now, employers can avoid a whole lot of sex and age discrimination if they just let employees wear what they want. Or if, like the surprisingly savvy and fashion-forward McDonald’s, they issue gender- and age-neutral uniforms.
- Unlike Mickey D’s, LVMH showed its less savvy side this week, when it made a very public declaration of its intention to promote more women to senior executive and board positions. While this announcement might be good for PR, it’s also decent background material for a potential sex-discrimination case against the conglomerate – at least, if the complaining plaintiff can get the declaration admitted into evidence.
There’s so much more to discuss: copyright protection for crazy, creepy, awesome animal costumes; the legal ramifications of “too thin” models; FDA-imposed restrictions on the use of body parts as apparel; Sonia Rykiel’s dangerous (baby) step toward Joseph Abboud-dom… but alas, there's a weekend to be wasted. Tune in next week for a roundup of fashion law news -- and remember, you can get the scoop one day sooner by reading my Friday CATWALK JUSTICE column on Styleite.com. (Again, my sincerest apologies to any strippers whose name was inadvertently used as the title of the column.)
[This post is for entertainment and informational purposes only, and does not constitute legal advice or create an attorney-client relationship among any individuals or entities. Any views expressed herein are those of the writer on the particular date of this post, and should not necessarily be attributed to his law firm or its clients.]