Archives for July 2014

Day 3 – TexWorld –

The seminar “The Future is Now: New Games & New Rules-Gaining Market Share, the Drivers Impacting Tomorrow’s Apparel Industry,” was a fascinating panel discussion, moderated by Manuela Fassbender, the founder and director of New York-based MBF Trend Consulting Inc. Ms. Fassbender opened with compelling overview of the panel discussion’s three main topics: conscious consumerism, high-technology in the fashion industry and the future of growth for start-ups in the industry.

CONSCIOUS CONSUMERISM

Maxime Bedat led the discussion about the growing trend toward ‘conscious consumerism’, starting with her own story as a pioneer in sustainable, responsibly sourced commerce as the co-founder of Zady, among the first online retailers build on the principle that retail and social consciousness can go hand-in-hand. After graduating from Columbia Law School, Maxine took the path of international law and advocacy, working at the United Nations General Assembly as an advisor and at the International Criminal Tribunal for Rwanda.

Zady – and for those of you reading this who are from Big Law and may not have heard of this website, it’s worth a visit – features products that, as she puts it “reimagine the world of retail as one that is responsive to the coming generation’s desire to connect, its demand for authenticity and as a driver of sustainability across the industry.” The idea has been successful enough to be named start-up of the month by Entrepreneur Magazine, to be listed among Fast Company’s World’s Top Ten Most Innovative Companies in Retail and to become Mashable’s No. 1 Business that Rocks Content Marketing.

Bedat’s experience in Africa, and the exposure that she got there to artisanal production, inspired her to create the non-profit The Bootstrap Project, which helps to finance and develop local arts and crafts businesses. Sales from Zady help to finance the Bootstrap Project.

To watch a video of this panel discussion, click here.

HIGH-TECH AND FASHION

The second topic on the agenda at this seminar dealt with another area of great innovation in the fashion industry: technology and its applications. Liz Bacelar, founder and CEO of Decoded Fashion, a leading events series that connects decision-makers in fashion, beauty and retail with emerging and established technology companies. Ms. Bacelar offered very relevant insights into the increasing overlap between high technology and the fashion industry, whether through such cutting-edge technologies as body scanning – for the perfect fit – or analyzing data to find the right balance between a retailer’s virtual presence and physical, storefront, presence. The phenomenon known as ‘pop-up retail’, when a store appears for a very short time in a venue and then disappears, is designed to heighten customers’ interest in a brand, and get the public talking. Judging by the trend’s development as Ms. Bacelar described it, this is a very effective marketing approach.

Julia Straus offered her views on growing start-ups, from her perspective as VP for Partnerships and Business Development at BaubleBar, the online jewelery jewelry venture that features “guest bartenders,” designers who have made it who endorse new designs, ‘inspired’ by the guests’ originals. Ms. Straus, a Harvard Business School graduate who oversees BaubleBar’s global digital and offline partnerships, also talked about the importance of keeping a bricks-and-mortar presence.

GOOD ADVICE

The final seminar, “How Not to Start a Fashion Brand” delivered great advice and was truly entertaining. New Yorker Mercedes Gonzalez, who began her career in the field at a family-owned manufacturing company and now directs the firm Global Purchasing Companies, offered what she considers the five most common, and lethal, mistakes that new designers can make. Her entertaining and very helpful presentation will soon be available online, and we will update the post to bring it to you here.

To watch a video of Ms. Gonzalez’s presentation, click here.

Day 2 – TEXWORLD USA 2014

The seminar “How to Market Your Fashion Business in Today’s Cluttered World” offered insights into the latest approaches to online and offline marketing. Speaker Melissa Hall, a consultant and the founder of The Emerging Designer fashion network, provided advice including approaches and tactics to help brands to break through in their fields.

The seminar “Textiles and the Federal Trade Commission” walked participants through the latest developments in FTC rules governing labeling and advertising, including fiber content and country-of-origin requirements. FTC attorney Robert Frisby helped demystify the recent amendments to the Textile Rules, which went into effect in May. The amendments clarify certain provisions and allow certain hang-tags that do not disclose a product’s full fiber content, among other features. Mr. Frisby also discussed rules addressing care labeling, wool products and fur products.

To watch a video of this presentation, click here.

For more information about FTC labeling requirements, click here to see the handbook, “Threading Your Way Through the Labeling Requirements Under the Textile and Wool Acts,” published by the FTC.

Whether you are a one-person startup, a mid-sized company or one headed for the Fortune 500, registering a trademark to protect the name or logo for your product or service is one of the single most important steps you take. Imagine pouring your heart and soul into developing a product, and then not being able to prevent someone from walking away with that distinctive name, tag line sound that identifies your product as yours. Your distinctive symbol may not be as famous as Chanel’s interlocking C’s, or the Nike swoosh, but if it symbolizes your business, it’s too valuable not to protect.

What will a trademark do for you?

Your trademark identifies and distinguishes your product from any others. It will allow you to block another company or individual from using the consumer recognition, trust and reputation that you built around your product. Any infringement on a trademark is illegal, and grounds for you to sue the infringing entity. There are several benefits to federal registration. Registering:

Gives you presumptive validity and exclusive right to use the mark.
Establishes a nationwide priority.
Enables you to deter and stop confusing fakes and free riders.
Makes you more attractive to investors, partners or licensees.
Can allow you to stop counterfeits and infringing products at Customs.
Gives you access to federal courts if you need to sue for infringement.
Reduces the risk that you will have to rebrand or purchase third-party rights.
Increases your brand’s ability to grow.
Offers the possibility of obtaining an “incontestable” trademark after 5 years.

How easy will it be to trademark your product?

The realm of trademarks spans a spectrum from made-up, or “fanciful” terms that are relatively easy to trademark, to generic terms, which can be more difficult to trademark. Fanciful terms, like Google, are inherently distinctive, and pretty easy to protect right off the bat. An everyday term, like Cars.com is considered “descriptive,” and will likely be difficult to trademark, until the product associated with the name has already gained significant brand recognition. Even then, the protection may apply only to products that match virtually identical marks and products. When a trademark is not associated with the underlying product, as is the case with Apple, for instance, it is considered “arbitrary,” and relatively easy to secure.

How do you get it done?

Federal trademark registration involves three general phases:

Clearance – This is the phase when you check to see whether your proposed trademark can be registered.

Filing – If the trademark you want to register “clears,” your attorney will prepare and file applications. The earlier you file, the better.

Prosecution – An Examiner at the U.S. Patent & Trademark Office (USPTO), will examine your application, bringing it to the registration phase. Then, during a “publication” phase, third parties may object to the registration of your mark.

So what’s the takeaway here? Register your trademark.

To learn more about the trademark process, you can visit the USPTO website, or contact us.

To learn more about how CASTAYBERT PLLC can assist you in clearing, registering and enforcing your trademark, click here, or for intellectual property matters, click here.

Disclaimer: This article is intended for informational and educational purposes only. Because of the generality of this article, the information it provides may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

It may seem like just yesterday companies were handing out corporate Blackberries and phones to employees. But today, “bring your own device” has increasingly become the norm. Encouraging employees to use their own devices to communicate for work purposes makes sense from many perspectives. Mainly, BYOD can save employers money and can increase productivity by offering employees flexibility. Industry experts estimate that as many as 60% of workers can access company data on their personal devices. This said, only a third of employers have any sort of management system to protect company data and even fewer have laid out specific BYOD rules.

Such an “anything goes” approach carries serious risks. The information that travels with an employee leaves the company’s control. Sometimes severe problems can arise ranging from intellectual property concerns, to the need to be able to make data available for potential regulatory or legal requests. It’s worth taking the time and effort to develop a specific company policy for BYOD.

Here are some guidelines:

1. Make sure that all stakeholders at your organization have had the opportunity to provide input regarding what they feel the policy should contain. Get feedback from all departments, including IT, legal, human resources, and compliance.

2. Decide which employees should be allowed to use their own devices. Take into account the nature of the data handled by a given employee and the company’s need to access that data.

3. Draw up a list of permissible devices. Some are simply not enterprise ready, and which should be allowed depends on such factors as capabilities, operating systems and compatibility.

4. Clarify which applications may be used for business purposes and specify restrictions. While you can block applications that do not meet your company’s security requirements from being downloaded onto company computers, and could monitor company-owned devices for risky applications, it’s difficult to control what an employee installs on a BYOD device. Whether to protect your company from a data breach or from unintended copyright infringement, your BYOD policy must get out ahead of these risks.

5. Insist that employees take maximal precautions in selecting passwords and use screen locks on all devices used for work purposes.

6. Spell out how the support and maintenance needs of personal device users will be met. Employees using their own devices will likely take at least as good care if not greater care of their personal property than devices provided by the company. But when a service need arises, how will you determine whether the company’s IT team should address it?

7. Set up an ownership policy for all business related data on the BYOD devices.

8. Make clear that the company must be able to access information on any BYOD device whenever necessary. Consider making devices remotely accessible, in the event, for example, that the company needs to erase data from a stolen device.

9. Protect the company from liability if employees engage in illegal or inappropriate behavior using their BOYD devices. Distracted driving and inappropriate use of social media are among the many behaviors that could expose the company to claims of negligence or harm through the use of BYOD devices. A good BYOD policy will ban such behaviors.

10. Craft a strategy to handle the transfer of data back to the company if an employee leaves the organization. Whether this means securing the right to delete information or supervising the employee’s data removal, this will reduce the possibility of losing key data, intellectual property, or client information.

Considering the benefits of the BYOD trend, it’s worth putting in the time and effort to craft a BYOD policy that works for you and your employees by addressing the security, IT service, devise use and application concerns upfront.

DAY 1 TEXWORLD –

July 22 to 24 Andre Castaybert attended TexWorld USA, the largest sourcing event in North America for apparel fabric buyers, research and product development specialist, designers, merchandisers and overseas sourcing professionals at the Javits Center in New York. He attended seminars in which industry experts offered insights into some the most pressing issues and recent trends in the apparel and textile industries. He met with individuals and groups from among the 760 cutting-edge exhibitors, representing 30 countries from Asia, the Middle East, North America and other regions.

THE WHAT WHERE AND HOW OF GARMENT PRODUCTION

Andre attended “The What, Where and How of Garment Production,” moderated by Dina Dunn, founder of marketing and communications agency Blink, which focuses on building brands across manufacturing and service-based industries. Presenters included Anne Gillespie and Sam Moore, two experts in standards and practices in organic and sustainable textile processes. They explored how designers can ensure that their products are made responsibly and that they comply with government regulations.

MADE IN AMERICAS

“Made in Americas” was a particularly interesting presentation. The seminar explored the benefits and rewards of shortening supply chains by manufacturing in the Western hemisphere, in particular in Guatemala, Colombia and the U.S.A. Julie Reiser gave an overview of the efforts by the Made In U.S.A. Foundation to promote products made and assembled in the U.S. She explained the foundation’s efforts to enforce the Country of Origin Labeling Act, to protect the “Made in U.S.A.” label. Matthew Burnett, co-founder of web-based marketplace Maker’s Row, explained how he and his partner Tanya Menendez were bringing together designers and U.S. manufacturers via a website that Time Inc. named one of its top ten 2014 New York startups, praising it for providing “unparalleled access to industry-specific factories and suppliers across the United States.” National trade association representatives Lucia de Sander and Sylvia Reyes provided a different presented the advantages of sourcing manufacturing in Guatemala and Colombia, respectively.

To watch the panel, click here and scroll down to “Made in Americas” video.

To learn more about TEXWORLD, visit their website.

July 10, 2014 – Andre Castaybert joined former colleagues and other Proskauer alumni at a joint Burberry and Proskauer private event held at the New York flagship store. The event, which featured cocktails and some gorgeous apparel and accessories from the Burberry Autumn/Winter collection, was a great opportunity to catch up with friends and former colleagues, including hosts Michael Album and Ron Sernau, and to meet the 2014 Proskauer summer associate class.

In this age of seemingly endless social media outlets, the pressure to capture a celebrity endorsement “freeby” can be enormous. But beware. As present as they can seek to be in the public eye, celebrities covet their identities and every form of likeness. This doesn’t have to take the wind out of your social media marketing sails. Just be careful, and considerate.

DO
Look to grab opportunities that present themselves legitimately. Keep an eye out for unsolicited endorsements, as these interactions are free game, but remember not to abuse.

DON’T
Don’t step into a right of publicity claim. Just because a celebrity has been photographed using your product, or is otherwise associated with it, doesn’t mean you’ve just stumbled on a free endorsement. And don’t assume that a small, limited mention won’t be noticed. Many celebrities have staff tasked with monitoring social media for just such unauthorized uses of their identities.

DO
Be polite. If a celebrity asks you to remove social media content that mentions them, do so promptly and without fuss. This is both the best way to avoid a dispute, and may build a bridge toward a future relationship or, even, authorized endorsement.

DON’T
Don’t rush. The time that it takes to request permission from a celebrity to use their persona to promote your business is well worth it if it helps you avert a dispute or even create a relationship.

A company’s intellectual property can include some of its most precious assets. When an employee leaves, particularly for a competitor, your company can be vulnerable to the loss of those assets. What’s more, ownership of IP, trade secrets and other confidential company information can be a murky area under the law. While a framework exists under the Uniform Trade Secrets Act, some states, including New York, apply their own interpretations of the act. But there are steps that you can take to protect your company from harm, and reduce the chances of conflict:

1. An ounce of prevention: Set forth clear terms about what will be considered a trade secret in the initial employment agreement. Some states make it very difficult for employers to hang on to IP unless these terms are in the original agreement.

2. Consider including a non-compete: A non-compete included in the employment agreement can come in handy in the event of an employee departure to a competitor. To learn more about how CASTAYBERT PLLC can help you with non-competes, click here.

3. It’s never too early: Depending on the nature of your business, it may make sense to ask even prospective employees to sign non-disclosure agreements during the interview and hiring phase, in the event that you find you have to share confidential information at that time.

4. Be clear: A good IP terms and conditions agreement makes it clear to everyone that anything that was worked on in connection with work done at the company should be assigned to the company, not the employee. This is particularly important, since some states do not have a codified invention statute.

5. Start with your employee handbook: Even if your company is not primarily IP-centered, you should have a company-wide policy, explained in your company handbook. In some cases, this may suffice to cover your non-disclosure needs. In any event, this is a great place to start.

6. Who should sign? Any employee or outside vendor or other business partner who might come in contact with sensitive information should sign such an agreement.

7. Know what’s yours and what’s not: At the outset of employment, a confidentiality and assignment of inventions agreement allows employees to identify prior inventions or other IP. Read the list carefully, so that, in the event the employee leaves, you know what was already theirs.

8. The exit interview: This is an opportunity to go over your expectations of protection. This is also an opportunity to remind the departing employee of their obligations by showing them a copy of the confidentiality agreement that they originally signed.

9. Put it in writing: You may want to put your expectations of protection in writing and communicate them to the new company. The non-compete in the original employment agreement will serve to reinforce this.

10. Take precautions before departure: In some cases, if you feel it is necessary, you may want to monitor email communications from the departing employee and restrict their copying privileges.

Archives for July 2014

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