Thursday, August 6, 2009

Legally Speaking

Because so many people ask me "what is fashion law?" after I tell them what I studied and where I worked during law school, I am inspired to write today's post. First a few basics.

Intellectual property (my area of concentration in law school) is the species of law that protects creative works of art. However, fashion falls into a large abyss between trademark and copyright law, where it doesn't quite receive the benefits of either. Trademark law protects brand identifiers, such as symbols, brand names, or other marks associated with a particular product. (Think Louis Vuitton's 'LV' monogram, 'Band aid', 'Xerox'). Its main function is to protect consumers from confusion in the market place, and guarantee that when you go to buy a Kleenex brand tissue, you get what you want. Registered trademarks carry the ® symbol, while marks followed by a ™ are asserting common law protection but are not federally registered. Copyright law on the other hand protects original works of authorship that have been reduced to a tangible form. (Think movies, musical arrangements, books). Copyright, notated by the famous (c), seeks to protect the author of the work, and maintain the integrity of creative industry.

So what about fashion? While some designers reap the benefits of trademark law when they use an actual symbol in their designs (again, think of Louis Vuitton's monogram collections), many collections do not feature an actual symbol or word that can be protected in this manner. (Despite the plethora of cheap, fake 'LV' monogrammed bags that hide like guilty villains in the depths of Canal Street, it is actually a federal crime to make and sell these knock offs. It is also a crime against fashion to be seen with one. Trust me, you're not fooling anyone.)

(A quick law school story illustrates the depths of my hatred for fake bags. My most upsetting law school experience came at an after class meeting with my Intellectual Property professor, who will remain nameless. While I was explaining my confusion about a certain aspect of patent law (really its all so dull you could die), I noticed my professor was staring intently at my classic Gucci bit bag. When I finally stopped talking, he hesitantly nodded toward my bag. "I must ask, about your it...", I think the look on my face at his mere suggestion of questionable authenticity stopped him dead in his tracks, and he quickly put his hands up in a defensive pose, and apologized profusely for even imagining that perhaps by bag was a dreaded knock off. While most law students tell fearful tales of cold calling and coming up empty when drilled on foot note 102 of a 60 page case, my moment of inner fury involved no such law-related narrative. But mine is much worse, most fashion lovers would agree.) But I digress.

Certain iconic styles that you'd be hard pressed to find a closet without, often originate with a designer whose name is never even associated with the item. For example, the ever popular wrap dress silhouette was first brought to life by Diane Von Furstenberg. Many women are unaware that their go-to piece for the office or weekend brunch was first created by DVF. As soon as the style hit the runways, it filtered down into the department stores, and then onto sketch pads of designers everywhere. Though DVF is credited among the fashion community for her inspirational design, she has no legal rights to it. If her wrap dress had been a novel or a musical work, DVF would receive money each and every time her dress was purchased, advertised, displayed, and marketed. A lot of passionate (and fashionable) lawyers spend their careers fighting for the designer's rights, and many other equally passionate (and often equally fashionable) lawyers fight in opposition. There should be something to offer to fashion besides the abyss it is currently forced into.

My own interest in trademark infringement is perhaps a bit more shallow. I truly despise fake bags, and I can smell them a mile away. (This is so true, that for my bridal shower my college friends got me a t-shirt that reads "I know your bag is fake" with a cartoon character. No joke.) I object to imitation, not the love of a discount. The thrill of snagging a $260 pair of Sevens for $120 on sale at Bloomingdales in your size is quite a rush. But crouching on your hands and knees in the back alleys of cramped crevasses along Canal Street to score a sad, putrid, amorphous lump of thread and canvas so that you can carry it around and hope to fool some passersby is just sacrilege. For the money, you could have a cute, nice, affordable little number from Nine West or a deeply discounted find from DSW. Why fake it?

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