Fashion Law, Brand Partnerships, and Protecting Your Work From Copycats
The internet age has exacerbated many of the legal issues faced by fashion designers and businesses, fueling the need for specific legal protection and advice.
For example, design piracy and imitation disputes have increased in recent years, leading to new legislation that provides legal protection for fashion designs.
We decided to contact a lawyer to shed light on these issues and others faced by actors in the creators’ economy.
Ashley N. Cloud, Esq., MBA is the founder and principal attorney of The Cloud Law Firm, PLLC based in Brooklyn, New York.
What prompted you to become a lawyer?
My mother was the first person to suggest that I become a lawyer. My mom was super strict, so I always refrained from hanging out with my friends on weekends for more than 2 hours at a time. We would have full debates and I would write his letters with carefully crafted arguments. I was relentless.
Even though I was very convincing, most of the time my mother’s answer was always “no”, but she thought that I would be able to help others with my talents. Once my mother gave me the idea of being a lawyer, it made sense. I’ve never been one to accept the status quo. I have always been quick to point out wrongs and wrongs and never hesitate to help those in need.
Black women make up just 2% of the legal profession. The road was not easy, but it was more than worth it. Representation is important and I know that the work I do has a huge impact on my community. It brings me so much joy to be a voice for the voiceless and to empower and educate people like me.
I am so grateful and honored to do this work. I have so many ideas for how I can continue to be a positive force in this world and I’m just getting started!
What should creators include in brand partnership agreements?
Usually, creators receive brand partnership agreements, so there are a few clauses they should always look for. They include, but are not limited to, compensation, deliverables, exclusivity, termination, and disclosures.
Compensation is important for obvious reasons – you want to make sure you know what you’ll be paid, any terms associated with the payment, and when you should expect your payment. When it comes to deliverables, you want to make sure you understand what the brand expects of you and that what you create meets their requirements. There will likely be an approval process that you’ll want to make sure you’re compliant with as well.
Often, brands will ask you to work with them exclusively for their respective industry. For example, if you work with a shoe company, you may not be able to work with other shoe companies for the duration of your contract. Pay attention to the duration of the agreement and under what conditions you or the brand can terminate the agreement; including any morality clauses.
If you’re a content creator, you’ll also need to pay attention to any disclosure requirements, as the Federal Trade Commission requires you to disclose your relationship with the brands you promote. You can check out helpful tips on FTC guidelines here.
Kim Kardashian was recently ordered to pay over $1 million for breaking FTC rules, so you’re going to want to pay attention!
Either way, you’ll want to read your contract, ask questions if you don’t understand something, and don’t forget to know your worth! Stand up for what you want if you’re not happy with the terms of your deal.
If you’re unsure if partnership is right for you, or if you still don’t understand the implications of the terms of your agreement, I suggest you contact an attorney you trust to help you.
What are the common misconceptions in fashion law?
One of the biggest misconceptions about fashion law is that it’s about intellectual property. Of course, intellectual property is an exciting facet of fashion law, but there is more to fashion law than just intellectual property.
Fashion is a multi-billion dollar industry. It may be glamorous, but like any other industry, fashion is a Company. Besides intellectual property, fashion law includes business law, contract law, labor and employment law, real estate law, international law, e-commerce law, life law law, supply chain law, technology law, consumer protection law, environmental law and so much more! The law really touches every aspect of a fashion business.
As the creator economy grows, what kinds of legal issues do you foresee?
There are more creators entering the market now that the barrier to entry is lower and consumers are more accessible. The main legal issue that I see growing in popularity is the world of non-fungible tokens (NFTs), blockchain, and the metaverse.
Because the law hasn’t quite caught up to this facet of fintech and intellectual property, I’m interested to see what kinds of precedents are being set to help guide creators and lawyers further in this space.
What recent fashion lawsuits interest you? What can designers learn from?
Recently, Skechers USA Inc. filed a lawsuit against Hermès International and Hermès of Paris, Inc. for patent infringement regarding its Massage Fit insole technology. This case got me excited because it is the perfect example of properly monitoring and enforcing your intellectual property rights.
Skechers sued brands for a similar infringement. With the popularity of the chunky, chunky shoe sole emerging in recent years, it will be up to the courts to decide whether Hermès infringed Skechers’ patents or whether the company was simply jumping on a popular trend not created by Skechers.
Another case that stands out and is not related to fashion but is more in the realm of entertainment, is the lawsuit recently filed by Goldenvoice, the company responsible for the popular American music festival Coachella, against Afrochella, a popular music festival Ghanaian. Afrochella allegedly infringed Coachella’s trademark and goodwill in promoting Afrochella.
There are arguments on both sides about whether Afrochella should be held liable for Coachella trademark infringement. One argument is that Afrochella specifically identified its own festival as inspired by Coachella, which some say creates an unauthorized affiliation between the brands.
Another argument is that Afrochella only takes place in Ghana and should be allowed to use its name since the company does not currently host its festival in the United States. I’m interested to see how the courts will decide this case or if the brands can come to an amicable settlement.
How can small designers protect their work from copying?
Formal intellectual property protections of fashion designs (i.e. the shape, style or fit of a garment) are virtually unprotected. However, there are several ways to protect certain aspects of your work as a fashion designer. In particular, you can protect an original print, design or sculptural adornment that is included on a garment through copyright protection. You can also protect certain types of creations with a design or utility patent.
Additionally, you need to protect your Mark through trademark and trade dress protection. Another way to protect your designs is to draft and sign contracts in partnership with others. For example, you can require the maker of your designs to sign a non-disclosure and non-compete agreement so that they don’t leak your design to another brand or try to replicate your design by creating their own. counterfeit. If so, you may be able to recover damages for breach of your contract and sales associated with that breach.
I also suggest designers use the power of their communities to fill the gaps in the law. When you see another designer or brand copying your design, let them know via social media. It’s much cheaper and you may be able to resolve the dispute much faster than by taking legal action.
Ashley is originally from Houston, Texas and is a proud graduate of Howard University School of Law and School of Commerce. Ashley is licensed to practice law in New York, Texas and the District of Columbia. Follow @thecloudlawfirm and @yourfashionattorney for updates. You can also visit www.thecloudlawfirm.com for more information.
Disclaimer: The information provided on this website does not constitute and is not intended to constitute legal advice; instead, all information, content and materials available on this site are for general informational purposes only. The information on this website may not constitute the most up-to-date legal or other information. This website contains links to other third party websites. These links are solely for the convenience of the reader, user or browser; Ashley N. Cloud and The Cloud Law Firm PLLC do not recommend or endorse the content of third-party sites.
Readers of this website should contact their attorney for advice on any particular legal matter. No reader, user, or browser of this site should act or refrain from acting upon any information on this site without first seeking the advice of an attorney of competent jurisdiction. Only your individual attorney can guarantee that the information contained herein – and your interpretation of it – is applicable or appropriate to your particular situation. Use of and access to this website or any of the links or resources contained within the site does not create an attorney-client relationship between the reader, user or browser and the authors of the website, the contributors, contributing law firms or committee members and their respective employers.
Any responsibility for actions taken or not taken on the basis of the content of this site is expressly disclaimed. The contents of this publication are provided “as is”; no representation is made that the content is error-free.