Fashion Law Archives - Castaybert Law, NYC

The New York City Bar has selected André to join the Fashion Law Committee. With his selection, André joins an impressive group of global industry leaders in shaping the future of fashion law. As a member of the Committee, André will discuss fashion law developments and public policy, continue honing his fashion law expertise, sponsor continuing legal education events and participate in public service projects.

Learn more about how Castaybert PLLC can assist you with Fashion Law matters here.

Learn more about the New York City Bar Fashion Law Committee here.

https://fashionista.com/2018/06/how-to-fund-finance-fashion-business?utm_source=Fashionista%20Newsletters%20Master%20List&utm_campaign=aeab032d23-EMAIL_CAMPAIGN_2017_12_19_COPY_01&utm_medium=email&utm_term=0_a23c93579d-aeab032d23-410579153

Alexander Wang x Judith Lieber clutch. Photo: @judithleiberny/Instagram

Dhani Mau of Fashionista recently published a very useful overview describing the various fashion finance options available to burgeoning fashion entrepreneurs. Among these fashion finance options are: loans via friends and family and traditional lenders, venture capital, private equity, factoring, side hustles and licensing deals, crowdfunding, and incubators, contests, and holding companies. Mau details each option’s pros and cons, making this a great introduction to fashion financing for anyone considering a fashion startup.

Find the full article here. To learn more about how Castaybert PLLC can assist with fashion financing matters, please click here.

This past December, the Second Circuit held that unpaid students working at Hearst Communications were in fact interns, and not entry-level employees, as Xuedan “Diana” Wang claimed in her lawsuit against the corporation. Her 2011 complaint alleged that Hearst interns were actually entry-level employees, mislabeled as interns, who were denied minimum wage and overtime payment in violation of the Fair Labor Standards Act and state law. The Second Circuit, in determining “whether Hearst furnishes bona fide for-credit internships or whether it exploits student-interns to avoid hiring and compensating entry-level employees,” considered the test established in Glatt v. Fox Searchlight Pictures Inc., which asks who the primary beneficiary of the internship relationship is. Citing various relevant factors, including that the internships were tied to an academic program, that they provided an educational experience—even in including repetitive or menial tasks—and that Hearst made clear that there would be no monetary compensation, the Court ruled in favor of the defendant.

Shortly following the decision, the Department of Labor issued “Fact Sheet #71: Internship Programs Under The Fair Labor Standards Act,” a set of guidelines which outlines seven factors to help determine whether students working for “for-profit” employers are entitled to minimum wages and overtime pay:

1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.

2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.

3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.

4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.

5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.

6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.

7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

It is important to note that though these factors clarify how courts analyze the legality of an unpaid position, no single factor is determinative, and “whether an intern or student is an employee under the FLSA necessarily depends on the unique circumstances of each case.”

To read more about the status of unpaid internships in the fashion industry, click here.

To learn how Castaybert PLLC can assist with matters of employment law, please click here.

To learn how Castaybert PLLC can assist with fashion law matters, please click here.

As unlikely a pair as they may seem, the fashion industry and the insurance industry do overlap in some important ways. Whether they are designers, retailers, manufacturers or modeling agencies, insurance is crucial to the individuals and companies in the fashion industry. Three key areas where these industries intersect are intellectual property, employment and antitrust, according to Matthew F. Putorti and Kimberly Buffington of Pillsbury Winthrop Shaw Pittman LLP.
In their recent article, Beauty and the Beast: Insurance in the Fashion Industry, they point out that insurance can help to expand the protection of intellectual property assets in an environment characterized by constantly evolving statutes and global variables.
Insuring against costs associated with employees is important. Employee Practices Liability insurance can help retailers protect against the costs of litigation related to complaints against employee practices, for example. And there are antitrust implications to think about when considering insurance in the fashion industry, particularly now, as the industry faces a recent trend in prosecutions of alleged price-fixing in high-profile markets among modeling agencies, among other challenges.

To learn how Castaybert PLLC can assist with matters of insurance law, click here.
To learn how Castaybert PLLC can assist with matters of intellectual property law, click here.

Tiffany Tibbot writes on the topic of The Basics of Patent Protection for Design on Maker’s Row reviewing how to protect your designs.
Tibbot’s number one lesson: fashion design cannot be protected but the pieces that make up the design can be. Things to consider should be what parts of your design are original and how can you make an impact at the entry level.

What you can do to protect your prototypes:

• Non-Disclosure/Confidentiality Agreements
• Exclusive Rights Agreements regarding a particular fabric, materials or technology
• Shared or partner Asset Agreement
Ways you can protect your inventions include: Brand Trademarks, Provisional Patent vs. Patent and International Intellectual Property Protection.

To read Tibbot’s full article, click here.

IFB recently published their 5 Essential Elements for a Successful Brand Partnership, available here. To recap, whether you are a brand or a blogger, you should:

1) Be clear on who you are, what you stand for, and what value you are adding to your audience. This can be accomplished through engaging, entertaining, and useful content.
2) Connect face-to-face and collaborate. Research your potential partner, share initial ideas, and confirm that there is a genuine connection.
3) Do not limit yourself to one industry or category. Diversifying opens you to an audience that you may never have been exposed to previously.
4) Be clear on what you’re looking for, especially when it comes to compensation, gifted products, and exposure.
5) Make sure you have a contract. Specify dates, the number of blog and social media posts, who is creating the content, the type of content being shared and where, etc.

To find out how CASTAYBERT PLLC can help you with IP and Fashion Law questions, click here.

WWD recently published an article exploring the importance of hashtags and trademark protection to retailers, available here. To recap:

Brands often use hashtags for their marketing campaigns. For example, Madewell’s #everydaymadewell, Hudson’s #letyourselfgo, and Revolve’s #revolveme encourage ongoing conversations between retailers and their customers. Because hashtags invite customer interactions, brands also recognize that hashtags can be valuable digital properties and are increasingly seeking protection for them.

The United States allows companies to register a hashtag with the USPTO if it functions as an identifier of the source of the brand’s goods or services. According to a recent Thomson Reuters report, “#CanWeTrademarkIt?,” the USPTO received 1,398 trademark applications for hashtagged terms last year, up from just seven in 2010. The study notes that clothing, footwear, and headgear are the most common classification of good and services with trademarked hashtags, with more than 800 so far. According to the author of the study, by registering their hashtags for trademark protection, brands have legal recourse against wrongful use of those trademarks by other parties using them for commercial gain. He also notes that brands aren’t likely to trademark every hashtag they use, due to the cost of registering, the time it takes, and the global reach of social media.

To see what Castaybert PLLC can do for you in terms of Intellectual Property Law, click here.

April 5, 2016 – André Castaybert has received over 200K views of his Fashion Law, Intellectual Property and Art Law curated content on Scoop It. Using Scoop It, André is able to keep himself and his clients and other followers informed about the very latest news affecting these fast moving industries.

André’s Fashion Law and Business Scoops now have 1017 regular followers. His Art Law content has 929 followers, and his IP, Copyright, Trademark, and Advertising content has 303 followers. Visit André’s Scoop It home page here.

To learn more about CASTAYBERT PLLC’s IP practice, click here.

To learn more about the firm’s Art Law practice, click here.

To learn more about the firm’s Fashion Law practice, click here.

The first steps in establishing your business are often the most critical. According to a recent Maker’s Row article, these three tasks are the most essential when launching your business:

Establish your name. Write down a list of 10 possible names you would like to call your business and check to see if the website domain name and social media usernames are available. Your company’s name is the most important asset, and some free sites like namechecklist.com or knowem.com can help you determine name availability quickly.
Secure your attorney and accountant to minimize any risk that could jeopardize your business.
Set up your corporate entity. (Castaybert PLLC has more information on this available here.)

To learn more about what Castaybert PLLC can do for you in terms of Business Formation, click here.

Chris Martin, founder of Last Match Studios and designer of original apparel graphics, is claiming that some of his original designs, known as the “Martin Designs” were copied by the designers at Ralph Lauren’s Denim & Supply used printed on graphic tees. Martin’s complaint asserts that “the comparison makes apparent that the elements, composition, colors, arrangement, layout, and appearance of the designs at issue are substantially similar.”

According to The Professional Association for Design, designers original work can be protected under copyright law when the derivative is “substantially similar” to the original artistic expression and is adequate enough so that the “average person” would conclude that the derivative work was based on or adapted from the original work.

For a complete description of this case, read more on The Style of The Case here.

To read the complaint in full, click here.

To learn more about how CASTAYBERT PLLC can do for you in terms of Fashion Law, click here.