Fashion Law, Brand Partnerships & Protecting Your Work From Copycats
The internet age has made it easier to solve many legal problems that fashion designers and manufacturers face, making it even more important to seek out specific legal advice and protection.
In recent years, copycat litigation and design piracy have increased, leading to new legislation providing legal protection for fashion designers.
We reached out to a lawyer to discuss these and other issues that face creators.
Ashley N. Cloud, MBA, is the Founder & Principal Attorney at The Cloud Law Firm, PLLC based out of Brooklyn, New York.
What inspired you to become a lawyer?
My mother was the one who suggested I become a lawyer. My mom was strict so I advocated for myself to spend more time with my friends than two hours on weekends. We would have full-on debates and I’d write her letters with carefully crafted arguments. I was unstoppable.
Although I was very convincing, most of the time, my mom’s answer was usually still “no,” but she figured I would be able to help others with my talents. It was a natural choice to become a lawyer after my mom suggested it. I’ve never been one to accept the status quo. I’ve always been quick to point out unfairness and injustices and I never shy away from the opportunity to help those in need.
Only 2% of legal professionals are made up by black women. It has been a difficult road, but it was well worth it. It is important to represent and the work I do has a significant impact on my community. It gives me great joy to be a voice of the voiceless, and to educate and empower people like me.
It is an honor and a great privilege to be able to do this. I have so many ideas about how I can continue being a positive force for the world. I’m just starting!
What should creators put in brand partnership agreements
Creators often receive brand partnership agreements. These include, but are not limited, to: Compensation, Deliverables and Exclusivity; Termination; and Disclosures.
Compensation is important for obvious reasons – you want to make sure you are aware of what you will be paid, any conditions associated with payment, and when you should expect your payment. Deliverables are important. You should understand what the brand requires of you, and ensure your work is consistent with their expectations. You will need to ensure that your work is compliant with the approval process.
Many brands require you to only work with them for your industry. If you are working with one shoe company, for example, you might be prohibited from working with any other shoe companies during your agreement. Be sure to review the terms of the agreement, including the conditions under which you or the brand can terminate it.
If you are a content creator, you’ll also want to pay attention to any disclosure requirements, as the Federal Trade Commission requires you to disclose your relationship with any brands you promote. You can check out some helpful guidance on the FTC’s guidelines here.
Kim Kardashian was recently ordered to pay over $1 million for violating the FTC’s rules, so you’re going to want to pay attention to this!
In any case, you will want to read your contract, ask questions if you don’t understand something, and remember to know your worth! If you are unhappy about the terms of your agreement, advocate for what you want.
If you are unsure if the partnership is right for you or if you still don’t understand the implications of the terms of your agreement, I suggest you reach out to an attorney you trust to assist you.
What are some common misconceptions about fashion law?
One of the biggest misconceptions about fashion law is that it’s all about intellectual property. While intellectual property is a fascinating aspect of fashion law, there are many other aspects to fashion law.
Fashion is a multibillion-dollar industry. Fashion is glamorous but just like any other industry fashion is an industry. Business. Apart from intellectual property, fashion laws include business law as well as contract law, labor law, employment law and real estate law. International law also covers e-commerce, privacy law and supply chain law. Technology law, consumer protection, environmental law and many other areas. Every aspect of a fashion company is covered by the law.
As the creator economy grows, what types of legal matters do you foresee arising?
Because the barriers to entry are lower and consumers have greater access, there are more creators in the market. The most prominent legal matter that I see increasing in popularity is the Non-Fungible Tokens world (NFTs), blockchain and the Metaverse.
Because the law hasn’t quite caught up with this facet of fintech and intellectual property, I am interested to see what types of precedents are established to help further guide creators and attorneys in this space.
Which are some of the most interesting recent fashion law suits? These are some lessons designers can take away.
Recently, Skechers USA Inc. filed a lawsuit against Hermès International and Hermès of Paris, Inc. for patent infringement in relation to its Massage Fit sole technology. This case was a perfect example of how to enforce your intellectual property rights.
Skechers has taken on brands who have committed similar infringements. With the popularity of the thicker, chunky shoe sole emerging in recent years, it will be up to the courts to decide if Hermès infringed on Skechers’ patents or if the company is simply hopping on a popular trend not originated by Skechers.
Afrochella is another case that stands out, and it isn’t fashion-related, but falls more in the realm entertainment. This lawsuit was filed by Goldenvoice, which is responsible for the U.S. music festival Coachella. Allegedly, Afrochella has infringed on Coachella’s trademark and goodwill in the promotion of Afrochella.
There are arguments on both sides on whether Afrochella should be held liable for infringing on Coachella’s trademark. Afrochella explicitly identified its festival as inspired by Coachella, which some argue creates an unauthorised affiliation between the two brands.
Another argument is that Afrochella only takes place in Ghana, and therefore should be allowed to use the name of the festival since it does not take place in the United States. It will be interesting to see how the courts rule on this case and if brands can reach an amicable agreement.
How can smaller designers protect their work from being copied?
Fashion designs are subject to formal intellectual property protections (i.e. Fashion designs are almost unprotected in terms of their shape, style, and cut. As a fashion designer, there are several ways to protect certain aspects. You can copyright protect any original print, pattern, or sculpture that is attached to a garment. A utility or design patent can be used to protect certain types and types of creations.
You should also protect your assets Brand Trade dress and trademark protection. You can also protect your designs by signing contracts with other partners. For example, you can require the manufacturer of your designs to sign a non-disclosure and non-compete agreement so they don’t disclose your design to another brand or try to replicate your design by creating a knock-off of their own. You may be entitled to damages for breaching your contract or the loss of sales if they do.
Designers should also consider using the power of their communities as a way to fill in the gaps left by the law. If you are a designer who is inspired by your design, share it via social media. It’s a lot less expensive and you may be able to resolve the dispute a lot quicker than suing in court.
Ashley is originally from Houston, Texas. She graduated from the Howard University School of Law as well as the School of Business. Ashley is licensed to practice law throughout New York, Texas and the District of Columbia. Follow @thecloudlawfirm for more updates. You can also visit www.thecloudlawfirm.com for more information.
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