Skechers Croc'd?

It's got holes in it -- but is it a Croc? The answer's "no". After indulging in some carefully-phrased hostilities, Crocs Inc and Skechers USA Inc have announced the settlement of all litigation between them in a patent infringement suit brought by Crocs. The terms of the settlement agreement apply to all outstanding litigation in respect of Croc's shoe technology anywhere in the world and appear to result in Skechers concentrating on its core styles in place of more Croc-like footwear.

Fashionista says: when it comes to footwear, IP-savvy people thinks of trade mark rights, designs and copyright and (apart from fame, fortune and glamour) not much besides -- but for anyone who takes a nerdish delight in these things, a search through granted patents reveals that there's a huge chunk of patented technology attached to the ergonomic shape of shoes, the functionality of their soles and the industrial processes for making them.

Keywords v Trade Marks -- let the battle commence.....

Given the growth of the online channel, all fashion retailers have been forced to learn all about SEO (search engine optimisation). One way to drive traffic to your website is through the purchase of keywords using Google's Adwords programme. In May this year Google changed its policy to allow advertisers to buy their competitor's trade marks as keywords. Yesterday Interflora issued proceedings against Marks & Spencers and Flowers Direct Online over their purchase of the "Interflora" mark (and various misspellings of the mark) as Google keywords.

Although brand-owners complain that competitors are trading off their goodwill and reputation by buying their trade marks as Google keywords, others argue that Google is promoting competition and consumers are not confused - they know the difference between a natural search result and a sponsored link. While that may be the case, Fashionista sees keywords as virtual signposts, and can't imagine the Courts allowing M&S to put an Interflora sign in their shop window, so why should the rules be different online?


Brands including Louis Vuitton have taken action against Google in France for selling keywords that were identical to their trade marks. While, in most of these cases, Google lost the first round, it has appealed the French decisions and three references to the European Court of Justice are currently pending. These references give M&S and Flowers Direct the basis to request a stay of Interflora's claim until the ECJ delivers its ruling.



While we are unlikely to get clear guidance from the Courts on this issue in the near future, now that Interflora has decided to take legal action, businesses may think twice before bidding on a competitor's trade mark as a Google keyword.

Law on Laur

Fashionista has just been reading an enjoyable "life in a minute" bio-feature on a genuine "Law" fashionista -- Natasha Law (you can read it here too, on Times Online). Having now recovered from the disappointment of learning that Ms Law's daily routine does not involve a trip to her lawyers to have the highlights in her design rights freshened, she is consoled by the confession that Ms Law has her eyes on a treasured piece of design antiquity. when asked, "If you could steal a wardrobe from anyone - past or present, fictional or real - whose would it be and why?", she replied:

"Lauren Bacall, whom I have loved and aspired to be like in vain since I was about 13: the hair, the suits, the dresses".

The Fashionista has some good news for her. Lauren Bacall's heyday as a fashion icon was the 1940s, which suggests that -- whatever the jurisdiction and whatever the type of legal right that originally protected the contents of that coveted wardrobe -- a little due diligence should uncover a large amount of clothing that is now nestling firmly in the public domain.

Keeping cool in KL, the Islamic way

It's not just regular laws that designers and fashion houses have to contend with -- in some places there are religious laws and customary norms too. In "Funky Islamic fashion struts conservative catwalk", Sean Yoong reports on the scene in Kuala Lumpur, where Muslim shoppers are being treated to an exciting range of colours and designs on garments that combine sartorial elegance with the demands of modesty and religious belief. The article states:

"Fashion gurus say Islamic apparel is a fast-growing segment of their worldwide industry, fueled by growing numbers of affluent, liberal Muslims who want to balance propriety with style and globally renowned designers such as Elie Saab whose creations can fulfill religious rules".

A notable export market is the United States, where Muslim women are said to "want to be a little bit more trendy than what is being given to them from Yemen." Elie Saab plans to expand her collections to other countries with sizable Muslim populations, such as China and France. Even non-Muslim designers are getting in on the action: a case in point is the ethnic Chinese Malaysian Lee Khoon Hooi, whose idiosyncratic zipper necklaces and tulip-shaped gowns have been sold in boutiques from Beverly Hills to Taipei.

Posh confession raises copyight issues

Weighing in at nearly 3,000 words, Lisa Armstrong's "Posh Frocks" (Times Online) provides a fascinating insight into the mind of Victoria Beckham, once better known as Posh Spice but now a fashion label in her own right. This interview touches on an aspect of copyright law that is often poorly understood:

"Without apparently taking offence (she has been fighting cynicism since she started school), she tells me that she does the designing. “Do I draw? No. Then again, nor do lots of designers. But I put it all on myself and walk around in it, and I know what feels comfortable. I know how a dress should sit. I've worn so many in the past and when I see the photographs I think, crikey, my boobs are up round my neck again because the corsets are too short and not cut high enough. Like I knew I would spend a lot on the best-quality zips because, like many women, I've had my share of crappy zips. I wanted a zip that undoes from both ends because then you can either put the dress on over your head or, if you don't want to mess up your hair, you can step into it - and also, you know, going to the loo wouldn't be this whole big palaver.”"

This raises the issues of authorship and ownership of copyright and design right in clothes designs, templates for manufacture and the garments themselves. If the person producing the actual embodiment of the design is not the designer herself, and if that person has sufficient scope for artistic discretion that the resulting design reflects a degree of artistic initiative from the person producing the sketches as well as the person giving the instructions, it's easy for copyright disputes to arise. A few swift strokes of the lawyer's pen can produce a solution to this problem that is at once both functional and elegant -- and which won't spoil anyone's hair-do.

Shutting up shop - how to get redundancy right

With the news this week Woolworths has gone into administration, it is inevitable that the New Year will see a number of store closures, and the accompanying redundancies. With this in mind, set out below is a brief overview of the redundancy process.

1) What is redundancy?
This is when an employer dismisses an employee because it will be closing down the employee's work place 9as in this scenario) but it will also apply where an employer will not be carrying on the part of the business in which the employee works, or it needs fewer employees to do that type of work.

Redundancy is a potentially fair reason for dismissal. But, unless the employer follows a proper procedure in a genuine redundancy situation, there is a risk the dismissal will be found unfair. In the event that an employee is successful in an unfair dismissal claim, they could be awarded up to £63,000 (£66,200 for dismissals after 1 February 2009). Store closures which involve making 20 or more employees redundant within a period of 90 days or less, require an employer to follow a collective consultation procedure in addition to consulting individually with employees.

2) When is a redundancy dismissal fair?
There must be a genuine redundancy situation and a fair selection process. There must be appropriate warning and consultation, a fair selection process and consideration must be given to suitable alternative employment for the employees in question. For retailers this could mean offering to move an employee from shop floor to warehouse (or vice versa) or to another store.

3)What is the process for collective redundancies?
A collective redundancy situation arises where an employer proposes to make redundant 20 or more employees at one establishment within a period of 90 days or less. An employer must consult with appropriate representatives at least 90 days before the dismissals take effect if 100 or more employees are to be made redundant, or otherwise at least 30 days before.
The consultation process must include consultation about ways of avoiding the dismissals and of mitigating the consequences of the dismissals. The employer must disclose in writing to the representatives certain information including the reasons for the proposals, the number and description of employees to be made redundant, and the method of selection. Failure to consult adequately or at all can lead to an Employment Tribunal making a protective award (of up to 90 days' pay per employee).
An employer contemplating closing a store may well find that it is caught by the collective redundancy regime, and it is therefore important to allow a sufficient period of time to carry out the consultation process before the firm dismissal takes effect.

The Fashionista says that since the purpose of a redundancy programme is to reduce costs, it makes good financial sense for employers to get specialist advice upfront when considering a store closure to ensure they get the process right and minimise the risk of expensive and time consuming Tribunal claims and possible damages awards.

New look, no mark

Weymouth (UK) based fashion house New Look has made quite a name for itself, but it's not an easy name to keep to itself. Last week the Court of First Instance dismissed its appeal against the failure of its application to register the words NEW LOOK for a whole raft of fashion items and accessories as well as a store name for its retail trade. Said the court, the words were

"a banal expression which is part of everyday English and does not present any linguistic difficulty. That expression will thus be understood to mean ‘new appearance’ by a public who are native English speakers, but also by people with a basic knowledge of English as such a level of knowledge is sufficient, in the present case, to understand the sign applied for".

What's more, New Look couldn't show that its name had become distinctive of its business throughout the territory of the European Union, the trading zone that the Community trade mark covers. This decision only covers the words NEW LOOK: it doesn't affect the eye-catching logo at the top of this post.

Fashionista says, choosing the right name for a label is a tough call. Names that send out a strong and attractive message are often those easiest to market, but their very strength as a message to shoppers is a weakness because messages like "new look" are kept free for all traders to use.