Started by models Sara Ziff and Jenna Saunders, the organization has gained worldwide recognition for its efforts in changing workplace treatment and ethical standards for models in the fashion industry.

The percentage of models with “high profile,” “lucrative” careers “misrepresent the reality for most working models, who are young, mostly female, and uniquely vulnerable,” says Ziff.

While fortunate in her career, Sara Ziff established The Model Alliance after seeing firsthand how the industry “disregards child labor law, lacks financial transparency, encourages eating disorders, and blindly tolerates sexual abuse in the workplace.”

The Model Alliance has five primary goals to help improve the professional standards for models. These are to: (1) provide a grievance and enforcement system for issues of sexual harassment; (2) ensure that existing child labor laws are enforced; (3) promote greater financial transparency; (4) provide access to affordable health care; and (5) draft a code of conduct that sets industry-wide standards for castings, shoots, and shows.

Working towards these goals, The Model Alliance produced at their bi-annual meeting a draft of the “Models’ Bill of Rights,” focusing and outlining models’ rights to professionalism, transparent accounting practices, career control, negotiable commissions, and specific rights for models under 18. For the complete bill, visit http://modelalliance.org/models-bill-of-rights.

In addition to fighting for models’ rights, The Model Alliance provides a Mentorship Program, pairing established models with up and coming talent, encouraging communication, and creating relationships agencies. Working with AFL-CIO unions the American Guild of Musical Artists and Actors’ Equity, The Model Alliance provides a free and discreet support line, allowing models to seek and report sexual harassment and abuse problems.

The mistreatment of models in the workplace has far-reaching political and socio-economic implications for our society than many might realize. “How the industry treats its models influences the ideal presented in magazines, and these images have a powerful effect on women in general,” says Ziff.

The Model Alliance and the Models’ Bill of Rights may well be the initiation of a new organized labor movement, working to create new law and change the treatment of individuals in the fashion industry.

Visit http://modelalliance.org/ to learn more about The Model Alliance. 

One can never forget the infamous tutu getup in the intro, the Vivienne Westwood dress for the wedding that would never be, and, of course, the John Galliano for Dior newspaper dress.

The moment I saw that dress marked the beginning of my being captivated by Mr. Galliano’s fantastical designs. Then came the scandal in 2011 in which the designer made anti-Semitic remarks in a Parisian cafe and subsequently lost his place at Dior, and in the world of fashion.

For a while, his name was an everyday staple in disparaging headlines. And then, as is true with most scandalous events, something more current and sensational came along and he was gone from the spotlight. That is until recently.

Mr. Galliano reemerged as a topic ripe for headlines when he showed up for the unveiling of Fall 2013 collections at New York Fashion Week. The New York Post used a photograph of him in what was considered by some to be Hasidic garb and placed it under the headline, “Shmuck.”

Some said this was an affront to Jewish people, an attempt to mock them. Others pointed out that Mr. Galliano has always been a flamboyant dresser and that he wasn’t intending to mock anyone but was just wearing another one of his outrageous outfits.

I know his name and reputation have been through the muddiest of waters and this is not likely on the top of his list of concerns, but I wondered, albeit a stretch, whether or not calling him a “Shmuck” counted as defamation in any way.

Defamation is an intentional false communication which is written (libel) or spoken (slander), that “harms a person’s reputation; decreases the respect, regard, or confidence in which a person is held; or induces disparaging, hostile, or disagreeable opinions or feelings against a person.”

First things first, John Galliano would likely be considered a public figure, which makes defamation a harder thing for him to prove. In 1967, the Supreme Court determined in Curtis Publishing Co. v. Butts that the actual malice standard was applicable to public figures, which means that there must be a reckless disregard for the truth.

Even if this standard could be overcome, there are several defenses available to the New York Post.

Some would likely argue that the statement is true and thus the 1967 Supreme Court decision in Time, Inc. v. Hill holding that truth is an absolute defense to defamation would apply. Or, the term could be classified as an opinion, which is a protected form of speech. In 1990, the Supreme Court determined in Milkovich v. Lorain Journal Co. that full constitutional protection is afforded to “a statement of opinion having no provably false factual connotation.” And finally, rhetorical hyperbole, which is language that the average person would understand purely as a joke, satire, or exaggerated name-calling, is deemed non-defamatory.

And so it seems that the New York Post would have an entire arsenal of defenses should Mr. Galliano decide this were a cause worth fighting (which isn’t likely).

While I’m not sure if I’ll ever again see a collection from John Galliano sent down a runway, I can say with certainty that the New York Post is well within its right in calling the designer a “Shmuck.”

In 1984, the long battle between the U.S. Polo Association and Polo Ralph Lauren began. At the time, a Manhattan federal court granted the USPA permission to use the “double horseman” logo on their merchandise, as long as it would not cause consumer confusion. The USPA’s double jockey logo bears a marked resemblance to Ralph Lauren’s mounted polo player.

Over two decades later, a jury refined the decision; if the double horseman logo were used in conjunction with text identifying it as a USPA product, it would not be infringing. However, the horsemen used without text would constitute infringement.

This past February, the 2^nd Circuit U.S. Court of Appeals continued to limit the USPA’s ability to use their logo; the Court upheld a previous ruling that the USPA cannot use the “double horseman” logo on its fragrances. Ralph Lauren had introduced its Polo Blue fragrance in 2002, and seven years later, the USPA designed its own fragrance, with a similar packaging.

The Court determined that by using the logo on fragrances, USPA was not acting in good faith, and had attempted to exploit the good will of Ralph Lauren’s mark. The Court of Appeals agreed that by using the confusingly similar mark on its fragrances, the USPA had acted with the “intention of capitalizing” on Ralph Lauren’s reputation and products.

And the point goes to Ralph Lauren.

This raises an interesting question: who owns a deceased celebrity’s publicity rights?

In the U.S., state law governs wills and the right to publicity, which includes the right to use and profit off of a celebrity’s likeness and name.  Currently, 13 U.S. states have legislation to protect dead celebrities’ right to publicity.

Indiana has the most extensive legislation granting dead celebrities the right to pass their right of publicity to their heirs. Indiana’s “James Dean Law”, passed the state legislature in 1994 and extends protection for one hundred years after the celebrity’s death.  Additionally, Indiana allows the transfer of celebrities’ publicity rights regardless of the state in which they were born. CMG Worldwide, an entertainment group that manages celebrity’s rights and estates, currently owns the publicity rights to such figures as Marlon Brando and Jackie Robinson.

California passed its “dead celebrities” bill in 1985, officially granting the right of publicity as a separate property right that can be granted before death by contract trust or after death in a will. The Astaire Celebrity Image Protection Act, as the bill has been called, also allows such rights to be passed to one’s heirs through intestacy law in the absence of a will granting the rights.  The Act grants owners of a celebrity’s publicity rights protection for seventy years after the year of death. Confusion as to which celebrities the law applied to arose in early 2007; California and New York federal courts separately ruled that the law applied only to celebrities who died after 1985.

The sale of celebrity publicity rights can be extremely lucrative. As the Telegraph reported in 2008, the Elvis Presley estate sold an 85% stake in its ownership for $100 million to CKX Inc.

However, some states, such as New York, prevent their residents from passing on their rights of publicity – the right ends at his or her death. Proposed legislation to make publicity rights descendible, however, has become increasingly popular. Last year, Bill Cosby lobbied the Massachusetts legislature to pass legislation that would protect a celebrity’s publicity rights.  As of today, Massachusetts has not enacted the proposed bill.

In contrast to the United States, France, a civil law jurisdiction, classifies the right of publicity as a personality right under Article 9 of the French Civil Code. During the life of a celebrity, the publicity right is treated as part of the right of privacy and cannot be transferred. The farthest that publicity rights extend after death is up until burial or cremation; pictures of a dead celebrity on his or her deathbed or in the morgue are banned and are considered an invasion of privacy.  Additionally, families of a deceased celebrity can bring suit against a party for disclosure of personal information, such as medical records, that injures that celebrity’s image or reputation.

Thus, while the Bergé endorsed “Yves Saint Laurent” film may contain information, conversations or other details that the “Saint Laurent” film may not, it is unlikely that Bergé will succeed in any suit commenced to protect YSL’s right of publicity.  PPR, the luxury group that owns Yves Saint Laurent’s brand as well as numerous trademarks including marks “YSL” and “Yves Saint Laurent” has not filed any actions in connection with the biopic, allowing YSL to rest in peace.

Lindsay filed a $1.1 million lawsuit against the clothing manufacturer of her company, 6126. The manufacturer is D.N.A.M. Apparel Industries, who licensed the “6126” trademark to manufacture clothing and agreed to pay Lindsay royalties. According to Lindsay’s rep, the license was revoked due to several breaches, including failure to pay royalties and using Lindsay’s designs for other labels. The causes of actions listed in the lawsuit were breach of contract based on a written agreement, fraud based on promise without intent to perform, and federal trademark infringement.  Further, the complaint held that Lohan should have received $200,000, which would be 10% of net sales in excess of $100,000, and also that she never received an additional $900,000 in “guaranteed royalties” during the last three years.

With all of the lack of job prospects, and the plethora of attorney’s fees that Lindsay has been racking up, it is understandable that she is looking to legal action as a source of income.

Lindsay has become quite familiar with the law. Unfortunately, since 2007, she is more familiar with the defendant side of criminal court. The last time Lindsay was a plaintiff she was suing Etrade, where she insisted that the “milkaholic” baby named Lindsay was named after her. In that case, she sued for pain and suffering for using her name as a parody of her life. She also threatened to sue Pitbull for using her name in his song, Give Me Everything, in which the lyrics stated “I got it locked up like Lindsay Lohan.”

Lindsay and her business partner, Kristy Kaylor, are still in business and are currently working on a licensing deal with another company.

In December Tiffany confronted Costco with a cease and desist letter to which Costco agreed to stop all use of Tiffany’s trademark in connection with the sale of their diamond rings.  Nevertheless, Tiffany & Co. has gone forward with the lawsuit and filed the complaint in the U.S. District Court for the Southern District of New York on February 14, 2013.  The complaint alleges trademark infringement, dilution, counterfeiting, injury to business reputation, false and deceptive business practices and false advertising, and claims damages in the form of a permanent injunction against Costco from using Tiffany’s trademark and for the wholesaler to “publicly admit its misconduct to the purchasers of each such ring, and notify affected purchasers that they do not own a Tiffany ring”.  Further, the jeweler seeks monetary damages in an amount equal to Costco’s profits made as a result of their unlawful use of Tiffany’s trademark as well as for punitive damages and attorney’s fees. (Complaint).

Costco’s use of the Tiffany’s trademark on in-store advertisements likely violates the Lanham act both because it unlawfully used the Tiffany trademark in their stores in connection with the sale of rings and because they did so in a manner that suggested an association and connection between Tiffany and Costco i.e. that Costco was a lawful distributor of genuine Tiffany & Co. brand rings.  In effect, Costco’s use of Tiffany’s trademark confused consumers as to the actual source of the diamond rings they bought and deceived them into believing they were an authentic Tiffany product.  (See, 15 U.S.C. §§1114, 1125).  The fact that Costco actually is a lawful distributor of other high-end luxury branded goods such as Cartier, Breitling, Chanel and Movado increases the likelihood that consumers would be confused and deceived into believing they purchased Tiffany & Co. rings.  If Costco sells genuine Cartier then why shouldn’t they also sell genuine Tiffany?  Tiffany & Co. spends a great deal of time and money protecting their Brand’s reputation by subjecting their goods to “rigorous quality control standards” to guarantee to the public the origin and quality of every item it sells.  The company also chooses only to sell its luxury goods at Tiffany & Co. retail stores where trained sales professionals are there to help.  (BusinessWire.com).  In doing so Tiffany not only ensures a quality product but also a glamorous purchasing experience for their customers.  Costco’s use of the Tiffany trademark in connection with the sale of diamond rings in Costco stores affects Tiffany’s image in the eye of their consumer (as evidenced by their Californian consumers complaint) and as a result, dilute or weaken the brand name.

Tiffany’s lawyer, Jeffery Mitchell of Dickstein Shapiro, reported to WWD that he believes the brand has sustained intangible damage as a result of Costco’s false advertising and the complaint suggests he believes Costco’s actions were willful, that Costco purposefully attempted to trade off Tiffany’s goodwill with the intention to deceive consumers.  Therefore, he believes it is necessary to go ahead with the lawsuit seeking a permanent injunction and monetary damages even after Costco agreed to take the signs down.  Mr. Mitchell explains to WWD that “the brand’s ‘name and goodwill’ were tarnished” and sees it as Tiffany’s duty to pursue the lawsuit not only to uphold it’s own reputation, but also to right the wrong done to the Costco members who were deceived into believing they were buying genuine Tiffany products, which they were not. (WWD)

Costco’s CEO, Craig Jelinek, defended his company by stating that the word “Tiffany” was meant to describe the engagement rings’ setting and not to suggest the Tiffany brand.  In an internal email sent to all employees a few days after the lawsuit was filed he stated, “we have sold some high-quality diamonds that were signed or labeled using the word ‘Tiffany’.  That was intended to describe a setting style used on those rings, and was not intended to claim that the rings were of any particular brand.  In retrospect it would have been better had we not used the description the way we did.” (Brandchannel.com).

In most recent news reported by WWD, Costco filed counterclaims against Tiffany in the Manhattan federal court on Friday March, 11, claiming it only used the term “Tiffany rings” to describe the setting type of the ring, and further that “the word Tiffany is a generic term for ring settings comprising multiple slender prongs extending upward from a base to hold a single gemstone”. (WWD).  The wholesaler argues that describing the rings as “Tiffany” was not an attempt to profit off Tiffany & Co.’s goodwill but to describe the setting type explaining that the rings came with receipts clearly indicating their origin of purchase – Costco, and were sold in beige boxes unlike those sold by Tiffany which come in light blue boxes with white ribbons.  Costco asks the court to “permanently ban Tiffany from claiming it controls the name of the ring setting, which Costco deems ‘generic’” merely describing a setting type, interestingly first created by Charles Lewis Tiffany, the man who founded Tiffany & Co. in New York City in 1837.

www.brandchannel.com/home/post/Costco-CEO-Tiffany-Suit-Email-021813.aspx

www.businesswire.com/news/home/20130214006484/en/Tiffany-Files-Lawsuit-Trademark-Infringement

WWD.com/business-news/legal/tiffany-squares-off-against-costco-6766484

The complaint can be viewed at: http://www.scribd.com/doc/125630408/Tiffany-v-Costco-Complaint

http://www.wwd.com/business-news/legal/costco-seeks-tiffany-co-lawsuit-dismissal-6843201

Women’s Wear Daily (WWD) followed the Burch Battle quite closely, beginning in early October 2012 when Christopher filed suit against his ex-wife for breach of contract and tortious interference. However, WWD hinted back in February 2012 that Tory Burch was contemplating a lawsuit against her ex-husband for either “…trade dress infringement or usurpation of corporate opportunity” over the opening launch of Chris’ new retail store, C. Wonder. WWD “Christopher Burch Files Suit Against Tory Burch,” 10/03/2012. Even though Tory did not wind up filing suit, it certainly seems like she was concerned with trade dress infringement.

Interestingly, Tory’s counterclaim does not directly mention “trade dress” as an outlined cause of action, whereas “misappropriation of trade secrets” forms the basis of her suit against Chris Burch and his new retail stores, C. Wonder. Tory claims that Chris, being a member of the board of directors for Tory Burch LLC, was privy to information concerning “…highly confidential data compilations, business methods, techniques and processes” that are economically valuable because they are not known to the general public—essentially, trade secrets. (Tory Burch Counterclaim, 46-47).

According to Tory, the C. Wonder brand was developed and selected based on the confidential information that Chris learned in the course of his duties as a Board member. However, it would seem that any products sold in C. Wonder or the “look and feel” of the store, such as its décor and product packaging, could have easily been copied from simply looking at the Tory Burch stores and did not require Chris being privy to the trade secrets that Tory Burch and her company own.

The counterclaim discussed the “look and feel” of the C. Wonder stores and how they closely resemble that of the Tory Burch stores, including testimonies from bloggers, customers, and the media commenting that both stores seemed to be “connected” and how many are “confused” as to whether the two stores are associated with each other. But why is it that Tory did not directly assert a trade dress infringement claim?

To assert a trade dress claim, Tory Burch would have had to establish her trade dress rights—since trade dress rights are not registered, such rights are not presumed and it is up to the party alleging infringement to establish that there in fact exists trade dress rights. If Tory was unable to produce enough evidence to support trade dress rights, then her trade dress arguments would not only fail against Chris, but would open her brand to possible worldwide dilution and tarnishment. It may be that she did not want to take the chance that the court could deny her all trade dress rights, which would certainly harm her brand.

Tory does assert an unfair competition claim at common law, but such claim does not necessarily translate to a trade dress infringement claim. In fact, Tory indicates in the unfair competition claim that Chris’ misappropriation of her company’s trade secrets is what led to the public being confused and the possible dilution of her Brand. Even under the “indirect” trade dress claim, misappropriation of trade secrets plays a prominent role.

If the Burch Battle has taught us anything, it may be that lawyers have added another weapon to their arsenal when fighting trade dress infringement—the weapon of trade secret misappropriation. It will be interesting to see in the future if trade secret misappropriation claims start playing a larger role in fashion suits and trade dress claims in general. The Battle of the Burch Brands may be over, but the war against trade dress infringement and trade secret misappropriation certainly is not.

In June 2011, the Navajo Department of Justice sent the company a cease and desist letter. However, Urban Outfitters did not pull the “Navajo” name from their products. It was only after a woman, Sasha Houston Brown, heavily criticized the company for their offensively named products in a blog post on Columbus Day that Urban Outfitters acted. “Navajo” was removed and some product names were replaced with the word “Indian.”

A lawsuit was filed in February 2012 in the U.S. District Court in New Mexico. The suit alleged trademark violations, violations of the Federal Trade Commission Act, and violations of the Federal Indian Arts and Crafts Act of 1990. The Act “prohibits misrepresentation in marketing of Indian arts and crafts produced within the United States,” which makes it illegal to sell arts or crafts in a way to falsely suggest some connection to the Navajo tribe or its members when there is none. The tribe is seeking monetary compensation and an order permanently enjoining Urban Outfitters and their subsidiaries from using the name “Navajo” or any other variations of it.

The tribe has roughly 10 trademarks on the Navajo name covering clothing, footwear, online retail sales, household products and textiles. Not only does the tribe view Urban Outfitters’ products offensive, but also as a threat to the established Navajo brand, which the Nation prides in standing for quality, Navajo-made jewelry, clothing, and accessories.

Recently, the Navajo nation has won their first initial battle. Urban Outfitters, a Philadelphia based company, sought to change the venue of the case to the eastern district of Pennsylvania stating reasons of convenience and the experience of the Pennsylvania court with trademark issues. Although the District Court in New Mexico did agree that the case would move faster in Pennsylvania, taking all things into consideration, it denied the request stating that it would inconvenience the Navajo Nation.

The TTAB, affirming the decision of the Examining Attorney, held that the wave design was merely an ornamental decoration and that the public would not perceive the applicant’s mark as an indicator of source. The TTAB stated that such a mark could only warrant trademark registration if the applicant could show the mark had inherent or acquired distinctiveness, or that the applicant has used or registered the design in a non-ornamental manner for other goods or services.

The Examining Attorney argued that the wave design is not distinctive, “due to its large size, consumers will not perceive it as a mark when used on the ‘hooded sweat shirts; jackets; coats’ for which applicant seeks registration.” The TTAB, in this precedential decision, declared that there, “is no per-se rule regarding registrability based on the size of a mark on clothing. Rather, in considering the commercial impression of marks of this nature, the size of the mark is one consideration along with others”. In this instance the TTAB found that the wave mark is “rather simple and looks like piping” and unlike other large scale designs discussed in the opinion, which were highly stylized and serve as source identifiers warranting protection.

Lululemon additionally argued that the wave design has acquired distinctiveness based on the company’s use of the mark on related products and services. The TTAB rejected this argument noting that the registration Lululemon attempted to tack the subject application to is a much more stylized wave tapering and varying in thickness throughout, and highlighted by contrasting circle. Though many consumers familiar with the brand may recognize the above sweatshirt as a Lululemon product, the TTAB found that the general public is likely to perceive the subject mark as merely ornamental, and refused to grant it registration.

Operation Red Zone not only targeted international shipments of counterfeit merchandise as it entered the United States, but also focused on warehouses, stores, flea markets, online vendors and street vendors. This year marks the fifth consecutive year that the federal government targeted counterfeit merchandise sold around the Super Bowl. Operation Red Zone targets counterfeiting at a variety of levels. By seizing shipments of counterfeit goods, halting sales of counterfeit goods within the US boarders, and seizing internet domains names being used to sell counterfeit goods were seized, the operation seized at least 163,000 counterfeit sports goods worth $17 million.

Of course, the most concerning counterfeit good to a fan is potentially a phony ticket. Vice President of Legal Affairs for the NFL, Anastasia Danais, reports that hundreds of fans are turned away from the Super Bowl each year because they have counterfeit tickets.  On some occasions, it is believed that fans may have purchased authentic tickets, but in fact received counterfeit tickets.   At this year’s Super Bowl, 168 tickets were seized with a manufacturer’s suggested retail price of more than $154,000. Forty-one individuals were arrested nationwide during the operation including six federal and 35 state and local arrests. To combat counterfeit tickets, the NFL implanted security devices to aid in differentiating between legitimate tickets and counterfeits tickets.  Additional tactics include laser die cuts placed in the tickets, heat-sensitive ink on the back-side of the ticket, foil embossing the Lombardi Trophy image, and the center of the ticket’s cover art being raised and embossed.

In addition to combating counterfeit tickets and other NFL merchandise, Operation Red Zone is also focusing its efforts on shutting down online distributors of counterfeit goods.  A majority of these websites are operated overseas and use sophisticated tactics to appear to be selling authentic NFL merchandise.  In recent months 313 domain names have been seized.  The battle continues between law enforcement agencies and these websites selling counterfeit goods.