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"Avant-Garde Advocacy" by Alessandra Biaggi


Avant-Garde Advocacy

by Alessandra Biaggi

What is "Fashion Law"?

On September 8, 2010, after months of anticipation of what would arguably mark the commencement of a new field of law, Fordham Law School launched the Fashion Law Institute, becoming the first legal center in the world devoted to Fashion Law. As part of its new curriculum, the Institute offers students a broad spectrum of courses, including: Fashion Law, Fashion Law Practicum, Fashion Law & Finance, Fashion Ethics, Sustainability & Development, Fashion Modeling Law, and Fashion Retail Law. See http://law.fordham.edu/fashion-law-institute/20512.htm (last visited August 12, 2011).

Yet the Fashion Law Institute does not aim at educating law students alone. Fashion businesses are also encouraged to benefit from the legal issues raised among this educational forum, while designers in need are invited to seek pro bono legal assistance from the Institute. However, as the news of this endeavor spreads, many may be wondering how this marriage of fashion and law was consummated.

Although it has not always been recognized as a separate niche within the legal profession, the origin and substance defining the Fashion Law sector are embedded within the rules governing many legal fields. At its most basic level, the fashion professions require the protection of a diverse cross-section of many germane facets of law. Moreover, the absence of any previous title to legitimize its existence does not denote that Fashion Law did not exist. In fact, quite the contrary is true. On behalf of their creative and corporate clients, attorneys have been entrenched in fashion-related litigation under other more "traditional" titles, including intellectual property law, contract law, immigration law, real estate law, employment law, labor law, tax law, anti-trust law, mergers and acquisitions, and criminal law, among several others.

An example of an attorney dedicated to the long-standing practice of Fashion Law is Barbara Kolsun, Executive Vice President and General Counsel of Stuart Weitzman, L.L.C. Within the industry, Ms. Kolsun is recognized for her strident anti-counterfeiting efforts. Serving as Chair of the Board of the International AntiCounterfeiting Coalition ("IACC"), her work earned high regard in 2002, when the New York Times deemed her to be a "pit-bull who lunges at brand counterfeiters." Nichole M. Christian, A Pit Bull Who Lunges at Brand Counterfeiters, N.Y. TIMES, Nov. 13, 2002.

Over the course of her career, Ms. Kolsun has served as Senior Vice President and General Counsel for Seven for All Mankind, L.L.C. and of Kate Spade, L.L.C., as well as Assistant General Counsel for WestPoint Stevens, Inc. and of Calvin Klein Jeanswear Co. Ms. Kolsun's also served as the co-author and co-editor of the first and only published Fashion Law textbook, a work titled Fashion Law: A Guide for Designers, Fashion Executives, and Attorneys. See Barbara Kolsun & Guillermo C. Jimenez, Fashion Law: A Guide for Designers, Fashion Executives, and Attorneys, Fairchild Books, 2010 (hereinafter Fashion Law). As an adjunct professor at Cardozo Law School and Fordham Law School for the Fashion Law Institute, she has lectured many students on the underpinnings of this practice area.

The dynamics of this field indicates the unique appeal to attorneys from a wide array of practice areas. To this end, a fashion attorney may focus his or her practice on one specific area of law, such as real estate and the drafting of commercial leases, whereas the needs of other corporate clients may demand an attorney specializing in license agreements, labor law disputes, or international tax law.

Global Growth and Legal Landscapes

It may shock the conscience of many to learn that under United States law, fashion designs are not protected. A similar incredulity may lend itself to the fact that European law does indeed protect such designs. Fashion Law, supra note 5, at 26. Particularly, within the United States, the three "pillars" of intellectual property protectability -- copyright, trademark, and patent law -- have provided a limited (and at times questionable) degree of protection for many designers and fashion houses.

For instance, under copyright law, it is possible to protect print and fabric designs, jewelry and accessories designs, as well as the photographs and drawings, which are used in fashion advertising campaigns. See Fashion Law, supra note 4, at 26. Within the realm of trademark law, fashion cases can also arise. A trademark is "any name, logo, image, or symbol that designates the source of a product. See Id. Within this regime, "trade dress," which is the "characteristic presentation or packaging of a product," may also provide protection. Id. Fashion Law examples of trademarks include the Gucci double "G", Chanel interlocking double "C", and the Coach "C".

Fashion cases can center on patent law, too. Within the United States there are utility and design patents, which are effective for twenty years and "are for scientific or technical inventions" including the creation of new fabric. See Id. Under design patents, "ornamental designs" may be patented. Id. Unfortunately, the fast pace of the fashion industry prevents design patents from protecting fashion designs because they require approximately 10 months to one year to obtain. Id. at 26-27.

The media has contributed to spreading awareness of these issues by highlighting the limits of intellectual property protection, which all too often affect luxury brands such as, CHANEL, LVMH, Louis Vuitton Moet Hennessey, and most recently, Christian Louboutin SA. See, e.g., A Message from CHANEL, http://www.chanelreplica.com/ (last visited July 5, 2011); see also Miguel Medina, Louis Vuitton wins landmark counterfeit Case in Canada, AFP (Jul. 6, 2011), http://news.yahoo.com/louis-vuitton-wins-landmark-counterfeit-case-canada-211205689.html; Christian Louboutin SA v. Yves Saint Laurent America Inc., No. 11-2381 (S.D.N.Y. 2011) (where parties are awaiting a decision from Judge Victor Marrero to grant a preliminary injunction that will require the fashion company Yves Saint Laurent to terminate the sale of its red-soled shoes; according to the complaint, in 2008 the U.S. Patent and Trademark Office issued Christian Louboutin a trademark for the red-soled shoes).

Consequently, these and other such companies seek legal shelter from counterfeiting criminals, despite leading the crusade with precautionary measures that establish anti-counterfeiting corporate procedures to minimize any consequential/resulting harm. The industry's "zero-tolerance policy on counterfeiting" has become evident through the zealous strides of in-house and outside counsel, who continuously strive to protect the intellectual property rights of their fashion clients. See Victoria Nicosia, Zero Tolerance in the Fashion Industry - The Devil Might Wear Prada, but Not Louis Vuitton or Coach, APPLIEDDNASERVICES: THE ULTIMATE REALITY CHECK, http://www.adnas.com/company-blog/zero-tolerance-fashion-industry-devil-might-wear-prada-not-louis-vuitton-or-coach (last visited July 22, 2011).

And while recent judgments in favor of Tory Burch and Louis Vuitton have earned designers broader trademark protection against counterfeiting, copious copyright protectability efforts by legal counsel may continue to be frustrated by the lack of legislation to support them. See Kelly O'Reilly, Tory Burch Awarded $164 Million in Anti-Counterfeiting Suit, NBC NEW YORK, http://www.nbcnewyork.com/blogs/threadny/THREAD-Tory-Burch-Awarded-164-Million-in-Anti-Counterfeiting-Suit-123639144.html (last visited June 10, 2011); see also Alexandra Steigrad, Tory Burch Wins $164 Million in Cybersquatting Suit, WWD, http://www.wwd.com/business-news/tory-burch-wins-164m-in-cybersquatting-suit-3650422?browsets=1307715619302 (last visited June 10, 2011). Furthermore, without the presence of an iron fist to deter recidivist offenders (like Forever 21) from plagiarizing designs, the fight against companies that incessantly manufacture "copy-cat" products will remain futile. See Jenna Sauers, Forever 21 Gets Sued for Copying - Again, JEZEBEL, http://jezebel.com/5821563/forever-21-gets-sued-for-copying--again (last visited July 15, 2011).

Fortunately, the efforts to earn designers greater protection for their fashion designs have been well underway. In 2010, United States Senator Charles E. Schumer (D-NY) agreed to sponsor The Innovative Design Protection and Piracy Prevention Act in a vigorous attempt to ameliorate the concern surrounding design piracy. Endorsed by the Council of Fashion Designers of America and the American Apparel and Footwear Association, prominent members of the fashion industry, including Prabal Gurung, Jason Wu, Narcisco Rodriguez, and Fordham Law professor Susan Scafidi, have testified on Capital Hill in favor of the bill's passage. See Katherine Boyle, Fashion Industry Testifies in Favor of Design Copyright Protections (Again), THE WASHINGTON POST: ENTERTAINMENT ARTS POST http://www.washingtonpost.com/blogs/arts-post/post/fashion-industry-testifies-in-favor-of-design-copyright-protections-again/2011/07/18/gIQAd2MuLI_blog.html(last visited July 18, 2011).

To tighten the gap of creative vulnerability, the legislation proposes to eliminate the registration period for designs, provide nonrenewable protection for three years, discourage needless litigation through heightened pleading standards, and to expand the current fair use "style" provisions under the Copyright Act so that "fashion police can't raid crafters' closets looking for illegal dresses." See Counterfeit Chic, supra note 14; see also L.J. Jackson, Some Designers Say Their Work Deserves Copyright Protection; Others Say It Would Harm the Industry, ABA JOURNAL,http://www.abajournal.com/news/article/some_designers_say_their_work_deserves_copyright_protection_others_say_it (last visited July 15, 2011). See also Association of Corporate Counsel, Will fashion design finally be clothed in "copyright" protection?, LEXOLOGY, http://www.lexology.com/library/detail.aspx?g=afc0e2ad-8153-4f9c-87a1-4803dd295438 (last visited July 7, 2011). Still, Congress' reticence to wholeheartedly accept the concerted arguments for passing the bill has yet to be tempered by the efforts and popular support from renowned members of the industry.

Recognizing the need to spread awareness by creating an active dialogue among professionals facing these and other such issues, Fordham Law School hosted its First Annual Fashion Law Institute Symposium, "Global Growth and Legal Landscapes," on April 15, 2011. Composed of four panels, the Symposium highlighted legal issues plaguing the profession by presenting recent developments in the industry, as well as pertinent legal research and landmark court decisions. Such topics included: mergers and acquisitions ("Shopping for Fashion Houses: Who's First in Line in the M&A Market"); production of garments ("Spinning the Globe: The Future of the 'Made In' Label"); the counterfeit and grey goods market ("Is Grey the New Black? Parallel Imports and Counterfeits in the Online Marketplace"); and fashion sustainability ("Eco-Chic: Is it Easy Being Green?").

Among some of the event's noteworthy speakers were Louise Firestone, General Counsel of LVMH Moet Hennessy Louis Vuitton Inc.; Valerie Salembier, Senior Vice President and publisher of Harper's Bazaar magazine; Erica Alterwitz, Assistant General Counsel of BCBG Max Azria; Paul Garrity, Partner of Sheppard Mullin; Sabina Lepre Leva, In-House Counsel at the Italian Intellectual Property Rights Desk in New York at the Italian Trade Commission; and Darren Lubetzky, Attorney for the U.S. Federal Trade Commission. The Symposium attracted many New York fashion attorneys whose attendance was complemented by various non-legal industry professionals at the event.

As a whole, the Fashion Law Institute of Fordham Law School presents a "safe haven" where designers of all ages and experience levels may seek shelter from counterfeiters while also receiving support through the Institute's available information and legal services. Consequently, with continued backing from the legal and fashion communities, law students, designers, and professionals alike will become better equipped to tackle the legal difficulties that the fashion industry continues to face in the twenty-first century.

Alessandra Biaggi is a third-year student at Fordham Law School with an interest in intellectual property pertaining to fashion law and counterfeiting. She has worked in Los Angeles as the executive legal assistant for Toberoff & Associates, P.C, where she was exposed to high-stakes litigation cases, including the firms' representation of the heirs to the Superman franchise in Joanne Siegel et al. v. Warner Bros. Entertainment Inc. et al. Alessandra spent last spring as a legal intern for the General Counsel of Stuart Weitzman, L.L.C., and spent this past summer working for In-house Counsel at H & M, Hennes & Mauritz, L.P. She is on the board of Couture Counselor, Fordham Law School's Student Fashion Law Society, and is a member of the Fordham Law Review, where she serves as the Co-Chair of the Academic Action Committee.

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