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.
As an example, recent trends in design piracy, copycat litigation, and fashion design theft have prompted new legislation to provide legal protection for fashion designs.
We decided to contact a lawyer to clarify these issues and other concerns facing creators.
Ashley N. Cloud is the Principal Attorney and Founder of The Cloud Law Firm, PLLC based at Brooklyn, New York.
What inspired you to become a lawyer?
My mother was the first to suggest that I become an attorney. My mom was very strict and I would always advocate for myself to be with my friends over 2 hours. 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 not been an easy road, but it has been well worth it. It is important to represent and the work I do has a significant impact on my community. It is a great privilege to speak for the voiceless and help educate others who are like me.
It is an honor and a great privilege to be able to do this. I have many ideas for how I can be a positive force in the world, and this is just the beginning!
What should creators include when negotiating brand partnerships?
Creators will often be presented with brand partnership agreements. Here are some clauses to keep in mind. 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. You need to understand the expectations of your brand and ensure that what you produce is in line with those requirements. You will need to ensure that your work is compliant with the approval process.
Brands may require that you work exclusively with them in their 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. You should pay attention to the length and conditions of the agreement. This includes any morality clauses.
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 not satisfied with your agreement, you can advocate for the changes you wish to make.
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 it’s just like any other 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. I see the popularity of the Non-Fungible Tokens (NFTs), Blockchain, and Metaverse as the main legal matter.
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.
Are there any recent fashion-related lawsuits that you find fascinating? 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 pursued brands for similar infringement. 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, which is a popular Ghanaian music festival, is another notable case. Although it is not fashion related, it falls more within entertainment. 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 Afrochella is held only in Ghana. The company should not be allowed to use its name as it doesn’t currently host its festival here in the United States. I’m curious to see how the courts rule on this case or if there is a settlement between the brands.
How can smaller designers protect their work from being copied?
Formal intellectual property protections for fashion designs (i.e. The shape, style and cut of a garment are practically unprotected. There are some ways that fashion designers can protect their work. Copyright protection is one way to protect a garment’s original print, pattern or sculptural embellishment. You can also obtain a utility or design patent to protect certain types creations.
Protect your identity and assets. Brand Trade dress and trademark protection. The contracts you create and sign with partners are another way to protect your designs. 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 could be eligible to receive damages and sales compensation if they violate your contract.
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 from Houston, Texas and is a proud graduate of the Howard University School of Law & School of Business. Ashley is licensed in New York, Texas, as well as the District of Columbia. Keep up to date with @thecloudlawfirm or @yourfashionattorney You can also visit www.thecloudlawfirm.com for more information.
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