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In this past month alone we've seen the initiation of two high-profile fashion cases -- one involving Rachel Roy in a dispute with her investor, Jones Apparel Group, and the other between fast fashion giants Aeropostale and H&M.
In the ever-evolving area of "fashion law" that encompasses everything from intellectual property to employment law (and many other practice areas in between), let's take a look at these cases and see what you can learn from them -- even if your company is not in the fashion industry.
In 2088, Rachel Roy entered into a contractual relationship with Jones Apparel Group ("Jones"), where Jones would help her develop, produce and sell products under her eponymous brand Rachel Roy. Now, Rachel Roy is suing Jones for trying to sell her company to Bluestar Alliance for $14.6 million without her consent.
Perhaps this wouldn't be an issue if Rachel Roy were represented by counsel during the negotiations. Yes, if your head just spun around, you read that correctly. According to the complaint, Roy "was unrepresented by counsel in those negotiations, induced by Jones's misrepresentations, [and now] requir[es] reformation of the agreements."
So what's the lesson for you? If your company is involved in licensing negotiations, or any negotiations for that matter, if the opposing party is not represented, you may want to suggest that they retain counsel -- it may prevent future misunderstandings that lead to litigation.
In the Aeropostale case, Aeropostale has the phrase "Live Love Dream" trademarked, as well as the number "87" and "Aero," yet H&M has produced and sold items with all of those marks and phrases, according to WWD (subscription only). The companies traded letters, but apparently were not able to resolve the matter resulting in litigation. Aeropostale is now suing for an injunction.
We can't see the future, but we're guessing this will settle. While H&M argues that Aereopostale can't prove likelihood of confusion, and that the phrase "Live Love Dream" "is a fair use protected by the First Amendment," we're not sure how this ever got this far. It's one thing to argue that if the companies are in different industries, but when they are in the same industry, serving the same customers, it's hard to see how H&M can make this argument in good faith.
What's the lesson for you? Save litigation dollars and really think about whether you should just comply with a cease-and-desist letter. With the case now in court, even if it settles, your company will be out of pocket. Take heed from future GCs, and think strategically.
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