[Guest post] Event report: Fashion Reinassance - A Unique Year in Review

The IPKat is delighted to host this guest post by Vito Spedito, who reports back from the recently held Fashion Law London event Fashion Reinassance - A Unique Year in Review. Here's what Vito writes:

Event report: Fashion Reinassance - A Unique Year in Review

by Vito Spedito

The most recent Fashion Law London event, titled Fashion Renaissance: A Unique Year In Review, was held on Thursday, 10 December 2020 and featured over 100 attendees from all over the world.

The event focused on changes in the fashion and retail industry as arising over the past few months, as well as emerging trends in the fashion sector. It was conducted and organised by the co-founders of Fashion Law London: Giulia Gasparin, Senior Legal Counsel at River Island, and Dr Eleonora Rosati, Associate Professor of Intellectual Property Law at Stockholm University and Of Counsel at Bird & Bird.

Intellectual Property – Notable decisions issued in 2020 (Eleonora Rosati)

After a warm welcome from both co-founders, Eleonora kicked off her Year in Review presentation on fashion-related notable cases concerning all aspects of intellectual property law: trade marks, designs and copyright.

The first part of the year (January to March) featured, as notable decisions, Response Clothing on copyright protection for fabric designs, Skykick on bad faith and over-long trade mark specifications, and Constantin Film on the morality ground as applied to signs that are vulgar or offensive.

From the period April - May, Eleonora selected the judgments in Gömböc on inter alia aesthetic functionality and a broader approach to the notion of substantial value, KIKO on copyright protection in store layouts and Hästens Sängar on a failed trade mark application for a mark consisting of a chequered gingham pattern by a Swedish manufacturer.

During the summer (June to August), notable fashion IP cases included Louis Vuitton, concerning this fashion house's Damier Azur figurative pattern mark and the question of acquired distinctiveness thereof, Brompton Bicycle on copyright protection of functional shapes, and Constantin Film on the notion of address as found in Article 8(1) of the Enforcement Directive 2004/48/EC.

The Stockholm Associate Professor concluded her review with the remainder of this year (September to December), including – as a notable decision – Glaxo concerning acquired distinctiveness for colour marks and evidence to be considered (including survey evidence), as well as the European Commission’s Intellectual Property Action Plan released on the 25 November 2020 for online platforms and the (then) upcoming Digital Services Act (subsequently unveiled on 15 December last).

Licensing, Marketing and Image rights – Panel discussion on Digital Fashion Marketplace (Kelsey Farish, Chiara Tramutoli and Simona Weaver)

Eleonora moderated the interactive discussion on Digital Fashion Marketplace and introduced the panellists: Kelsey Farish, Solicitor at DAC Beachcroft; Chiara Tramutoli, Legal Counsel at Pronovias, and Simona Weaver, Legal Counsel at Vivianne Westwood.

Kelsey set the scene by noting some key developments within the fashion retail sector during the pandemic and wondering whether certain retailers have been going into administrations because of Coronavirus or also poor business decisions prior to the beginning of the pandemic. She commented that there are key points that are shared between failing retail businesses: traditional business models, which are no longer working; high enough debt; private equity ownership; lack of investment in digital markets; and, issues with competitive pricing.

Chiara offered her experience working at a leading luxury bridal brand and discussed how Pronovias has adapted to stores closure. Whilst it is clear that all companies complied with local Government guidelines, some retailers went a step further with the introduction of online showrooms, virtual catwalks and - most importantly - virtual appointments for customers. Improved virtual customer journey, commented the Pronovias Legal Counsel, offered the opportunity to share the bridal moment of choosing a wedding gown with loved ones and significantly reduced business costs. With savings made from business travel for fashion shows, the Spanish brand has invested in the digital sphere for its customers. Chiara also discussed how Pronovias has managed to retain a strong relationship with its wholesale partners during bridal week (normally held in March, hence in the mist of COVID-19), thanks to its investments made in the digital sector.

Simona praised the work that Vivienne Westwood has done as a result of store closures. By keeping customers engaged through their social media channels, they have managed to increase customer loyalty, which – in turn – has translated to an increase in online sales. The British brand is also well-known for its links with the world of arts and its activist side and, as such, they have also shared less commercial content on their social media pages. Having virtual events, commented Simona, might come at the expense of brand equity, whereby there are no front row seats available.

On the topic of diversity and sustainability, all panellists agreed that fashion brands should do more and are already proactively engaging with relevant charities and companies to do so. Whilst changes to reach high sustainability levels are not inherently imminent because of business constraints, they can help improve the overall outlook and mindset within the high street and luxury industry.

Challenges and Opportunities within the Digital Fashion Industry - Intellectual Property Enforcement Presentation (Marion Marie Couvreur)

Marion Marie Couvreur, Deputy Director of Global Intellectual Property Enforcement at Alibaba, presented on Alibaba’s Intellectual Property Enforcement division and discussed ways in which fashion brands and retailers can protect their IP rights on its online marketplace.

Fashion and Gaming - Retailers meet Gamers (Giulia Gasparin and Manon Rieger-Jansen)

The last presentation held by both Giulia Gasparin and Manon Rieger-Jansen, Intellectual Property Partner at Bird & Bird, covered the Intellectual Property and Data Protection aspects of the interplay between fashion and gaming.

The session started with the introduction of statistics on online gaming, a well-known lucrative market worth $140B in 2020 alone, and some notable examples of fashion brands collaborating with gaming publishers.

Gucci collaborated with Tennis Clash to create Gucci-branded clothing for online avatars and in person. Gucci also introduced the Gucci Games Arcade within the Gucci Mobile App, and, more recently, the Gucci Sneakers Garage where online users can create customisable digital-only version of Gucci sneakers, try them on and purchase them for a modest fee.

In the luxury space, Animal Crossing saw collaborations with Marc Jacobs and Valentino, whilst League of Legends partnered with French maison Louis Vuitton. Gaming has attracted the interest of beauty brands too. Evenprime is one of the first beauty brands to seal a collaboration with online games. On Spellbreak, players can buy Evenprime serum for themselves as well as their skin.

Aside from Gucci, other fashion brands launched their own game. In Primark Legends - the game launched by Primark this year - players can live the life of a shop assistant, whilst in Afterworld - the game launched on 6th December by Balenciaga - players can expect to be engaged with fashion challenges, which are aimed at promoting brand loyalty and engagement.

Fashion and Gaming – Intellectual Property: Challenges in Trademarks, Copyright and Image Rights (Manon Rieger-Jansen)

The Bird & Bird Partner started her presentation exploring the IP issues that may arise for brands looking to launch their own videogame or sealing collaborations with existing video games. From a trade mark perspective, brands should be aware that trade marks are registered for specific goods and services and expansion into new product categories might not be covered by the existing registrations. Brands may need to seek additional trade mark protection when creating their own bespoke game or licensing in-game trade marks.

Copyright protection poses additional challenges. Copyright arises in game creations (source code, graphics, audio and design), but ultimately the branding of in-game items by fashion houses involves a number of IP rights, including design and copyright. Brands should pay close attention to image rights, in applicable jurisdictions, as well as any potential copyright infringement when using footage from the game featuring branded products, without valid permission.

With regards to sponsorship and collaborations, Manon noted that IP lawyers need to ensure there are clear terms on who owns the IP in the game. Ownership needs to be properly addressed in collaboration agreements, as well as licensing agreements for the use of trade marks in the game. There is a risk that due diligence might slip away if not carried out correctly, and this might result in dilution of goodwill attached to the trade mark or a wider reputational risk (as if, for example, branded items are featured in violent videogames). Manon stressed the importance of asking the right questions, and particularly in the case of sponsorships, warranties and indemnities should be covered at a minimum.

Counterfeits are as much of a challenge offline as they are online, and as such, fashion lawyers should ensure that their clients’ trade marks and designs are protected and that there are contractual agreements in place to cover potential counterfeit claims. Brands should also ensure that gaming companies have the right tools against counterfeits: removal of in-game items or players, where necessary.

Fashion and Gaming – Data Protection: The Age Appropriate Design Code (Giulia Gasparin)

Giulia concluded the Fashion and Gaming presentation with her expertise on Data Protection and discussed the newly introduced UK Age Appropriate Design Code. This applies to any information society services likely to be accessed by children in the United Kingdom. Online games do appeal and are normally used by children and fashion brands and retailers looking to launch their online games or applications with gaming features must do so in compliance with the standards set by the Code.

Giulia offered first-hand examples of issues, such as how to conduct a Data Protection Impact Assessment to ensure that privacy risks are assessed and documented and proportionate mitigating measures developed.

With regards to profiling, Giulia shared her expertise on the matter. Whilst, profiling adults (not covered by Article 22 of the General Data Protection Regulation) might be allowed on the basis of legitimate interest, profiling must be turned off by default when children access online services of a brand. Ultimately, where the age of users cannot be established profiling can be only be valid on the basis of consent. Giulia noted that the Code offers an opportunity for brands to enhance the privacy settings that they offer to their consumers online, whether adults or minors.

Closing Remarks

Whilst the pandemic has certainly affected business operations and revenues in the fashion sector, brands have advanced their investment in the digital sphere and explored new ways to engage with their customers in the era of social distancing.

Another area of growing investment is sustainability, a topic which will be the focus of Fashion Law London next event.

Stay tuned for more!