From Left: Susan Scafidi, Laura Zaharia, Marion Jana, Checa Chong, John Maltbie; all photos courtesy Fashion Law Institute
“IN THE BAG” (or perhaps the mid-range designer purse?) was the theme for the long-awaited twice postponed 14th Annual Fashion Law Institute Symposium. However, the seminar scheduling (usually held in April) would suggest otherwise. “This event has had more complications than a Swiss watch,” quipped Professor Susan Scafidi in her introduction. What followed was a “mixed bag” of the usual fashion law topics and their current ahem “status,” which I will attempt to “carry forward” in layman’s terms.
Jeff Trexler, Evan Clark, Joshua Kapelman Elnaz Zarrini Olivera Medenica, Douglas Hand
The panel on ‘POWER OF THE PURSE: Antitrust Issues Litigation and Fashion’ featured industry experts, including Evan Clark, WWD; Douglas Hand, Hand Baldachin & Associates; Joshua W. Kapelman, Hilldun; Olivera Medenica, Dunnington, Bartholow & Miller; and Elnaz Zarrini, Benefit Street Partners. Jeff Trexler, Comic Book Legal Defense Fund (wearing a profession-related Manga tie), served as moderator.
If you’re interested in the FTC challenge to the Tapestry and Capri merger, this got into it. “In 24 years at WWD, I’ve never had to know about antitrust,” Clark said, showing how unusual this proposed blocking order is.
Jacob Gallagher and John Owens Jr
At stake is something deemed “accessible luxury,” giving handbags in this category total market domination. Coach Michael Kors and Kate Spade (and a few others) would all be under one roof. Is the government looking out for “working-class women who want to buy a bag” against price inflation? Interestingly, many of these bags are sold at the outlet level — a Michael Kors bag could retail at $400, but on average, it would sell at $92. The FTC challenge to the Tapestry and Capri merger could significantly impact the accessibility and pricing of these luxury handbags.
How about creating an American LVMH (or Kering or Richemont)? Would that be legal? “I found myself being pulled further and further away from land,” remarked Clark. Kapelman of Hilldun, a company that finances and factors luxury brands, pointed out the cyclical nature of fashion. “Fashion brands in America have a life span – they go up and down.
Are they really afraid that this would create a handbag monopoly?” By contrast, he felt the merger would allow these brands to survive. “We need an LVMH to protect small brands from losing talent overseas. The model is broken – we need to create the model,” he added.
Jeff Trexler, Laurie Berke-Weiss, Beth Haroules, Norman Siegel, on screen Christina Asbee
Medenica, who represents Cult Gaia and finds this very frustrating, agreed that this merger was dissimilar to Amazon. “It’s a different kind of market, and it’s not a platform,” she said. At question is the very definition of “accessible luxury” – at these price points, women may purchase from all over, including the resale market.
“I just don’t think you have a clean decision,” she added. “It shows an outsider’s lack of understanding of consumer fickleness and how fashion works.” Besides, in a possible Trump administration, FTC Director Lina Khan would be gone — rendering this entire thing moot.
Sara Yood and Susan Scafidi
The panel on ‘GETTING A HANDLE ON NEW LAWS’: Legislative and Regulatory Update’ provided a detailed overview of the current legislative landscape. The discussion included Hilary Jochmans from Jochmans Consulting and Ashley Valdes from Warby Parker (both on Zoom), with Sara Yood from the Jewelers Vigilance Committee and Ariele Elia from the Fashion Law Institute as moderators. The panel highlighted the potential impact of these updates on the fashion industry.
I was there at the inception of the proposed ‘Fashion Workers Act,’ (it was actually my first LOOKONLINE event), introduced by the Models Alliance in November 2013, designed to provide fashion models with the same labor protections as other professionals in the industry. Despite its importance, the bill is still awaiting approval to be sent to Governor Hochul for the 12/31 session in Albany.
Another exciting topic involves trade — specifically closing the De Minimis loophole, which allows DTC companies such as Shein and Temu to do business. Merchandise under $800 is not subject to inspection by CBP (US Customs and Border Protection) — according to Jochmans, these two behemoth companies are responsible for more than 30% of such packages.
Of course, no fashion discussion can avoid the “s” word, for which there’s still no definition—”sustainability.” Laws at the state level on textiles and how to produce and recycle them while empowering the EPA to come up with a level of emissions for clothing lines were discussed, as well as “Green Guides,” including “lawful environmental claims,” which need to be updated as they have not been revised since 2012.
Jochmans added that, surprisingly, the antiquated Green Guides do not address sustainability. Yood, who has worked with Jochmans on these issues related to the jewelry industry, mentioned that” recycled gold” refers to only what’s in the waste stream.
“I don’t know about you, but I don’t generally throw away gold,” she quipped. Yood recounted how scraps and dust from work tables, carpets, and even air filters are sent in to recover metal. She added that the UK and EU have already dealt with sustainability issues.
Laws regarding Russian diamonds being used to fund the war with Ukraine were also briefly discussed. Once again, the US election would affect all of the regulations.
The Volunteers
After the salad buffet/sliced meat lunch break, we were back at it with “STATEMENT PIECES: Dress Codes, Mask Laws, and Freedom of Speech” along with Christina Asbee, Disability Rights New York (on Zoom); Laurie Berke-Weiss, Berke-Weiss Law; Beth Haroules, New York Civil Liberties Union; Norman Siegel, Siegel Teitelbaum & Evans; with Moderator Jeff Trexler. This panel dealt with what you can and can’t wear, anti-mask laws (beyond the medical realm), wristbands, and keffiyehs in the public and private spheres.
“Mask bans are the hottest topic of the day,” said Ms. Haroules. “Dress codes are the non-verbal expression of the First Amendment. Masks are often banned at public protests when used to hide identity — the Supreme Court ruled you can’t use masks for anonymity.” Siegel spoke of Pussy Riot – the anti-Russian government women who wore balaclavas and were prosecuted.
He also told a funny story about wearing shorts on a hot day to an outdoor protest when he was a lawyer for the ACLU and getting lots of television coverage and interviews for them. Later when he heard from his boss he assumed it was with praise. Instead he was called out for his attire. “Excuse me, Is this the ACLU?” he parried.
Burke-Weiss, a lawyer for both employees and employers, remarked that the 1st Amendment is not alive and well in the private sector. She detailed how the dress code often deals with decorum and a neutral adaptation for non-discriminatory reasons. “If the rules are no political speech can be demonstrated – how do you enforce that? Has anyone else made a political statement?
Is there selective enforcement—are you being singled out?” There is also the question of whether you are criminalizing someone’s opinion or someone’s actions, along with symbols that are triggering, such as a pride flag or a Confederate flag.
“SO LAST SEASON: Intellectual Property Challenges in the Resale Market” with Jana Checa Chong, Louis Vuitton; John Maltbie, Louis Vuitton; Laura Zaharia Marion, J.Crew, with Moderator Susan Scafidi. From a non-legal observer, this was the most interesting panel.
Harkening back to the February decision of Chanel vs. What Comes Around Goes Around (WCAGA), Prof. Scafidi proclaimed it “a good one.” WCAGA was selling counterfeit and unauthorized merchandise and implied that it was in partnership with Chanel using its “marks” or trademarks. It was found liable for $4M in statutory damages. The suit is currently in mediation — there is also litigation against TheRealReal.
Ms. Marion explained the “First Sale” Doctrine, which states that a trademark can’t extend beyond the first sale. She showed a chart of the different types of resale platforms—ones in which the user is in control, such as Poshmark, Depop, and Mercari, vs. those in which the platform has control, such as TheRealReal or ThredUp. Vestiaire Collective is in the middle, “a happy medium” — Vestiaire sets the price while the user takes photos and ships the item to the purchaser.
There is also a new platform called Croissant, which works with retailers. According to CNN Business, resale was responsible for $44B in sales in 2023 and is predicted to be up to $70B by 2027.
Who can authenticate, and what are gray market goods? The usual questions abound with this topic. What is an upcycled or transformed product? It can be “altering a product by applying new beading, tassels, hand painting, rhinestones, and/or designs. It can also be remaking the product into something else.
Checa Chong and Maltbie reviewed a litany of knock-off LV designs, particularly LV Malletier v. Sandra Ling Designs, in which Ling sampled “LV material” on other products. Not only is that unlawful, but she also used counterfeit Chinese LV logo sheets!
Susan Scafidi, Jacob Gallagher, John Owens Jr, & on-screen Mimi Plange
We lastly come to TOTES AND VOTES: Politics and the Gift Of Garb with Jacob Gallagher, New York Times; John Owens Jr., New York City Law Department; and Mimi Plange, Designer (on Zoom) moderated by Professor Scafidi. How should politicians dress, and how do they dress? Plange, who dressed Michelle Obama in 2013, said the most important things when dressing a public figure are fit and timelessness. “You’re bringing someone’s voice to life just like any other client, but you’re more nervous,” giggled Plange. She describes the former first lady as “fashion forward.”
“Clothing itself is a tool,” she said. “Women can use it more freely; there are more options. It’s about knowing who you are and how you present yourself.” When it comes to actual politicians, what about the constraints of office? Should Kamala have dressed down in Converse on that last cover of Vogue? (Unfortunately, the new cover of Vogue hasn’t been revealed yet, so we didn’t get to discuss speculation about allegations of digital manipulation of her image.)
“She wears suits all the time. She looks comfortable but should break up the colors and wear brighter colors,” Plange suggested. “Will she step out of her comfort zone? There’s a place and time – an occasion or setting where she could even wear a high-slit gown (as Prof. Scafidi) asked. “You will get a reaction no matter what,” Plange offered.
What about male politicians — “the good, the bad, and the John Fetterman,” as Prof. Scafidi queried New York Times writer Gallagher? For men, there’s more of a template, he explained. Sometimes, it’s more about where the suits come from and how expensive they are. He points out that Kamala is wearing a lot of Chloe and other costly French suits as opposed to Obama’s USA made Hart Schaffner Marx.
Trump wears either Brioni suits or golf polos – in a style emblematic of his generation. Biden uses a tailor in Delaware. “I’d love to see politicians do what the NFL or NBA members do with their suit linings – have a politician show an American flag lining,” he quipped.
On-screen upper left Ashley Valdes, on-screen lower center Hilary Jochmans, seated in person Ariele Elia, Sara Yood.
As for Fetterman, Gallagher calls him “the one outlier” in his casualness. Incidentally, they passed a dress code to stop him from his Carhartt and shorts-wearing ways. Gallagher mentioned various sartorial choices such as Marco Rubio’s Cuban boots and Ron DeSantis’s possible lift wearing as well as Pete Buttigieg’s shirt sans necktie “an attempt to highlight his youthfulness,” but wouldn’t touch Obama’s tan suit – terming it “such a cliché to reference.” “Men have a pack mentality – they don’t want to stand out other than maybe George Santos.” I would add our own Eric Adams to that flashy dresser category – it seems like it may have backfired on both of them!
Regarding campaign swag, the Harris Walz camo hats are union-made in America, while MAGA hats are made overseas. “There are extremely few places in this country that produce them,” Gallagher noted. Also, partisan tie-wearing – it seems that Dems can only wear blue ties and Republicans red. In case you were wondering: “JD Vance wore a red tie at the debate, not fuchsia,” said Gallagher. “It should have been light tested.”
Can brands or designers promote politicians wearing their designs? They would need confirmation from their office to do so, and they are not supposed to be offered special deals on the clothing due to gift limit amounts. Remember the kerfuffle over Sarah Palin’s new campaign wardrobe paid for by the RNC?
Is there anything a politician shouldn’t wear? “Anyone who loves fashion will make a faux pas because you’re trying out new things,” Plange said.
Latest Comments:
Irene and Matt are so authentic! Love that they still do the live formats where we can ask questions or…
All so individually creative and entertaining! Marilyn, I want your skirt!
Fashion changes with the times, and ways to present it must change creatively too.
Let his name live on for what HE designed so he can rest in peace.
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