[Guest post] Fashion Law London: The Spring/Summer Collection - Event report

On 28 February last, the third fashion law event organized by Fashion Law London took place in Central London.

Megan Curzon (Bird & Bird) and Clara Chasles (Freshfields) were in attendance and now report on what happened that day.

Here's what Megan and Clara write:

Fashion Law London: The Spring/Summer Collection - Event report

On 28 February 2020, Rosie Burbidge, Giulia Gasparin, and Eleonora Rosati hosted their third Fashion Law London event, entitled "The Spring/Summer Collection".

The event focused on new developments in the fashion industry, ranging from legal to technological. With an international list of attendees from across the fashion sphere, the sessions included talks from experts on topics such as enforcement of international brand protection, the integration of AI in fashion, and the status of image rights protection.

Big Data, AI and Machine Learning: a technical perspective:

The day started off with a talk by Ijaz Akram from Crowdcube (formerly of Conde Nast). Ijaz used his experience as chief technical officer to provide an insight into the impact of big data, AI and machine learning on the fashion industry. He discussed trends such as personalisation and predictive analytics and how they may influence the fashion industry, in addition to highlighting challenges for companies implementing these technologies.

Ijaz noted that AI is a useful tool for streamlining many parts of the fashion industry, including product buying, item recommendations and customer service. However, he warned that companies should focus on how AI is trained to ensure it is as reliable as possible. Whilst predictive analytics is helpful in identifying general trends, fashion is also a particularly individual choice and companies require large amounts of individual data to produce accurate predictions. 

Big Data, AI and Machine Learning: the legal perspective:

Giulia Gasparin and Eleonora Rosati then discussed the legal implications for some of the technological advancements described by Ijaz. Giulia provided an overview of legal issues that may impact fashion companies, such as liability for damage caused by technology and consumer protection issues. She then gave a helpful overview of the evolving EU and UK data protection landscape. 

Eleonora discussed technology within the context of intellectual property. She highlighted the text and data mining exceptions in copyright and the issues surrounding IP protection for fashion designed by AI. 

Both Eleonora and Giulia’s presentations included interesting topical examples. The pair offered tangible action points for individuals working in the industry impacted by the convergence of fashion and technology.

Alibaba IP Protection Programme

Graham Clemence from the Alibaba group provided attendees with an insight into Alibaba’s extensive IP protection programme. His talk set out guidance for companies looking to combat counterfeits sold online, and he discussed practical steps that could be taken to tackle infringing products on Alibaba's platforms. Graham explained how notice & takedown, removal, collaboration and offline enforcement all interlink into an effective anti-counterfeiting strategy. He also highlighted how businesses can improve product takedown speed by participating in their 'good faith programme'.

Image rights panel

Moderated by Eleonora Rosati, the roundtable discussion starring Frederick Mostert, Kelsey Farish, and Hilary Atherton featured engaging and relevant issues and developments in this fun and complex area of the law.

Frederick Mostert started off the discussion focusing on deep fakes. Deep fakes are synthetic media whereby an already existing video is altered or an entirely fictional video is created through artificial intelligence. These sorts of alterations have exploded in the USA, to the point that states like California and Virginia have introduced deep fake-specific legislation.

The discussion was then followed by Kelsey Farish’s take on contractual issues arising between a talent and brand when negotiating the rights to use an image. Kelsey highlighted the importance of modification, bad behaviour and morality clauses. From a practical perspective, she noted that it is wise for both the talent and the brand to be aligned in terms of political and social concerns. Whilst misconduct by the talent will have a business impact on the brand, the reverse is also true.

Finally, Hilary Atherton discussed the key IP litigation relating to unauthorized use of one's own image. She explained that image rights are not available in the UK. Lacking self-standing protection, a claim of false endorsement under the common law tort of passing off is sometimes employed. The most notable use of this approach in recent times has been in Rihanna (Fenty v Arcadia Group Brands Ltd (t/a Topshop) [2015] EWCA Civ 3) [Katpost here].

Data Protection update

In the first session of the afternoon, Giulia Gasparin discussed what the data protection regime would look like after the UK leaves the EU.

The primary question relates to the model to be adopted: a free data flow or data blocking? The standard model clauses, regulating the data flow between EU and non-EU countries, however, are not adequate for the data protection flow.

The discussion then continued to the difference between the California Consumer Privacy Act (CCPA) and the EU GDPR. One of the biggest differences is that the CCPA applies only to large companies whereas the GDPR applies to all businesses. Giulia explained that brands should pay close attention on the clear wording of payments and make sure that all adverts are adequately disclosed.

Fashion franchising: what do you need to think about?

Gordon Drakes, a specialist in brand development, discussed franchising in the second part of the afternoon.

Franchising is helpful when a brand (the franchisor) wants to expand its business (often into new geographic regions) but needs initial and ongoing support and assistance. This help will be given by a local franchisee that has that local expertise and wants the opportunity to grow a business within that geographic region. However, franchising agreements also bear many risks, the most obvious one is that the brand loses some control over the end product.

To avoid some of these risks, the franchise agreement needs to be very carefully drafted. Gordon explained that special attention should be given to the legal requirements in the target market. The modelling fee revenue scheme, marketing fees and training fees are key, and should be drafted with care to ensure that there is sufficient margin for the brand so that the franchising agreement remains profitable.

In addition, the relevant brand needs to be adequately protected and remain owned and controlled. Gordon discussed the different franchising options and the pros and cons of each as well as the importance of “good faith” within franchise agreements.

The future of franchising might look very much like the future of fashion. Franchisors will need to innovate through automation of stores and a better data flow through AI allowing for movement from product to an experience-driven focus. This type of “management franchising” is already very popular in the hotel industry and this popularity is likely to spread to fashion.

Fashion and IP: recent case law review

Winding up the day, Rosie Burbidge and Eleonora Rosati discussed some of the most important copyright and trade mark cases of the past few months and how they would impact the fashion industry.

Both covered a variety of cases, including inter alia Cofemel [Katpost here] (concerning the requirements for protection of designs by copyright), Koton and Sky [Katposts here, here, and here] (both on the issue of bad faith), and Constantin Film [Katpost here] (concerning immoral signs).

To wrap up the day, the discussion focused on the impact of Brexit on certain intellectual property rights and what would happen after 31 December 2020, the end of the transition period.

Conclusion

Overall the day was insightful and engaging. The speakers provided valuable context to the changes happening within the fashion industry, offering both fantastic legal analysis and practical guidance. We thoroughly enjoyed the sessions, and want to thank Guilia, Eleonora and Rosie for allowing us to attend and assist with the event.