Fashion Law Institute 7th Annual Symposium: Fashion Revolutions

I spent eight hours last Friday in the company of lawyers preparing for the revolution. Don’t worry, it’s not as ominous as it sounds – I was at Fordham Law School’s Fashion Law Institute for the 7th Annual Symposium entitled Fashion Revolutions. Students/staffers/comrades-in-arms (or at least in black berets) led me to their leader Professor/Founder Susan Scafidi with the day’s mission via a hot pink folder bearing an image of Coco Chanel channeling Che Guevara.

Susan Scafidi

The revolutionary table décor (artillery cases and grenade vases), could have landed Prof. Scafidi on a federal watch list should her search history be surveilled. Faster than you can say “bleach bit” I went to my post fortified with Danish pastry, fresh fruit and tea for the Opening Salvo. Here is a relatively brief summary of the five panels that ensued.

Grenade vase centerpiece

“Idea-ologies: Recent Trends in Fashion and Intellectual Property” brought everyone up to speed on a very recent SCOTUS decision (3/22/17) concerning Star Athletica v. Varsity Brands. Yes, unbelievably, the Supreme Court is ruling on cheerleading uniforms. Michelle Marsh of Arent Fox explained the case which concerned the placement of the chevron pattern and whether they were protectable under copyright law. “Justice Thomas (who read the decision overturning the lower court) is our unlikely hero with Justice Breyer and Kennedy dissenting. “We’re trying to protect an industry that’s horribly underprotected,” she said. “There’s a bias against clothing being copyrighted – one justice was afraid that it will increase the cost of clothing.” Marsh took a moment to credit Prof. Scafidi for a fashion case even making it to the Supreme Court. Everyone clapped and expressed their optimism for the future of these cases.

Susan Scafidi, Michelle Marsh, Anna Della Val, Maurice Ross

Other cases discussed were Converse v. ITC in which Nike who bought Converse in 2002, waited 10 years before securing three registered trademarks on design elements of Chuck Taylor sneakers. They then proceeded to sue everyone from manufacturers to retailers including Ralph Lauren Corp., Tory Burch, Sketchers, New Balance, and Walmart. By the way, an ITC case can easily bankrupt a smaller company as it can cost upwards of $1M in defense. The question was whether Converse really enjoyed exclusivity on this trade dress (loosely defined as something people associate with a specific brand or design) since they didn’t always have exclusive use of it.

Maurice Ross of Barton LLP spoke of Jenny Yoo’s bridesmaid “convertible straps” design; the company filed for both a design patent (which protects the look) as well as a utility patent (protects usage). “In a style or design that lasts for years, the biggest danger to your business is knock-offs,” Ross said. “They sold tens of millions of these dresses at Nordstrom however they began to be knocked-off by David’s Bridals, Watters & Watters, Adrianna Papell and others. They caught lightning in a bottle with this style.” Other cases discussed were Samsung v. Apple and Louis Vuitton Malletier v. My Other Bag, a canvas parody style which lost by the way. Be prepared for more of these types of lawsuits surrounding footwear and handbags (particularly concerning distinguishing metal or hardware) as these issues are sure to be litigated going forward. Timely and Real news: I just read that Forever 21 is being sued for knocking off Rihanna’s Fenty Puma popular shoe line. Bish better have my money indeed!

Paula Barnes, Diana Bernal, Daniel Plenge, Kenya Wiley, Janett Martinez, Po Yi

“Mercenary Matters: Technology and the Changing World of Retail” began with panel moderator Paula Barnes of Macy’s, Inc. remarking that “Silicon Valley should take note of our diversity on this panel.” It was composed of four women and one male. Everyone agreed that customers are driving innovation in brick-and-mortar with features such as Smart Mirrors (which can virtually show you how another color in a dress would look without trying it on) and Smart Dressing Rooms which notify sales staff if the customer wants to try another size or item. Interestingly, Diana Bernal of Richemont spoke of Amazon’s desire to open stores when they are already doing a huge online business. Data is of the utmost importance but must be collected transparently and there must be a human touch. “High tech without high touch is only half the equation,” said Janette Martinez of Loomia.

They all agreed that the in-store experience should be made as special as possible — if you stick someone in store in front of a screen, they could have done that at home. Online services such as Stitchfix which sends you clothing based on personalized preferences and Birchbox for cosmetics were discussed with a desire to lessen the “creepiness” of being tracked for data. Social media and omnichannel marketing must be done thoughtfully along with full disclosure of influencer marketing so as not to get in trouble with the FTC as Lord & Taylor did last year by not disclosing sponsored content.

Jeff Trexler, Kenya Wiley, Hilary Jochmans, Claire Bing, Sara Yood

Next up: Field Rations aka the perhaps overly long buffet lunch; a cornucopia of salads which I felt inclined to douse in Russian dressing (all this talk of Russia, Russia, Russia must have influenced me), cheesecake and chocolate mousse for dessert. Followed by Freedom Fighters or Anarchists? Tailoring Legal Ethics to an Era of Deregulation.” The after lunch panel is when I usually catch 40 winks and honestly governmental agencies and regulations are way above my pay grade. Hilary Jochmans of Jochmans Consulting who “lives on Amtrak” spoke of Dodd-Frank and it’s regulation on conflict minerals which fund terror, as well as ethically mined gold and the 3T’s (tin, tantalum, tungsten).

Moderator Jeff Trexler, Kenya Wiley, Hilary Jochmans, Claire Bing, Sara Yood

Although this ruling may well be overturned by the Trump administration Sara Yood of the Jewelers Vigilance Committee doesn’t think you can put “the cat back in the bag” declaring that even if this law goes away there will still be a strong check on the industry’s supply chain. Cosmetics laws were also discussed in terms of being able to substantiate your claims. “The FDC guidelines will not allow you to say a cream takes 25 years off your body. What if you’re 25 – do you look like a newborn?” quipped Claire Bing of Tarte Cosmetics. She spoke of 3rd party validation and mission statements. “Trends will change but I never want to hear than an eye fell out.”

Jeff Trexler, Don Obert, Anna Borkovic, Roberta Portella, Marc M. Levey

“Border Wars: Fashion, Global Trade, and the New Isolationism” involved many foreign viewpoints from Italy, Brazil and the U.K. via Skype. As usual, seamless technology still eludes us and there were many false and humorous starts to the Skype hookup. Moderator Jeff Trexler deadpanned “As part of Brexit, they’re no longer part of Skype” as Stephen Sidkin of Fox Williams finally got both the connection and his camera to cooperate (we were focused on his desk and a coffee cup for a while there). Don Obert of The Obert Law Firm (Italy) defined trade as “to get what you need from someone who has it” but remarked that it could be used equally as political sword or shield. Sidkin railed against Brexit with a biblical passage basically calling it nothing short of the zombie apocalypse. Marc Levey of Baker & McKenzie tried to explain the non-viability of the border tax, calling it double taxation which will “give rise to enormous technical problems.” Placing blame solely on Paul Ryan, who he named as a disciple of Jack Kemp, although one who once again got it wrong. “There will be enormous pushback against a border tax.” ‘Nuff said.

Doreen Small, The Honorable Carolyn B. Maloney, Melissa Hall, Nanette Lepore, Julie Fredrickson, Christine Helm, Gary Wassner

Finally, I think I hear angels singing as the fifth and final installment “Grassroots Uprising: Frontiers and Landmines for Fashion Entrepreneurs” begins. This was a rollicking ride including Congresswoman Carolyn B. Maloney who extolled the virtues of NYFW on city coffers, (so much so that she suggested a week focused on the cosmetics and beauty industry too). “New York Fashion Week is bigger than the U.S. Open, the Super Bowl and the Marathon (in terms of income generation). In addition, according to Maloney, the NYC garment industry employs 1.8 million; is a $98 billion a year industry; and is 8 times bigger than in Paris, 10 times bigger than in Milan. “You’re on top of the world right now, so how do you stay there?” Nanette Lepore and Gary Wassner of Hilldun Corporation are neighbors in the garment center, each trying in vain to preserve the “drastically shrinking amount of factories in NYC.” Lepore mentioned Mayor DeBlasio’s suggested move to Sunset Park in Brooklyn, however she is concerned that there doesn’t seem to be an interim plan for these factories. Wassner lamented that he has never met the Mayor or Senator Gillibrand although he has spent four years on a Garment Center council committee.  He is concerned because nearly all the garment center has become offices with only one remaining factory in his building – see article in Crain’s New York .

Part of the audience attending

Congresswoman Maloney expressed an interest in taking up their cause advising them to hire an ally to advocate on their behalf. The panel also spoke of supporting emerging talent financially with a “support ecosystem” which Wassner often does through his business. “I absolutely love this industry and the people in it,” he said. “Every day we get up and get dressed which helps us express ourselves. All of us together as a community make this happen. It’s not something we can afford to give up.”

Ahh, free at last, the revolution is exhausting. Despite the brutal battle awaiting me (rain and rush hour traffic be damned), I went AWOL on the Molotov cocktails, heading back to my crosstown bunker for fresh ammunition and/or a nap.

– Laurel Marcus