David Leys
Founded in 1943, New York Fashion Week (commonly abbreviated NYFW) is the first seasonal fashion week organized in history.[1] Twice a year, NYFW presents the new collections for women, namely in September (spring-summer collection) and February (fall-winter collection).[2] New York City (NYC) is considered the global capital for fashion. Every year, more than 200,000 people attend NYFW which is home to over 900 fashion companies.[3]
NYFW just took place from February 6 to 13, 2020. This last edition was not really successful. Many famous brands such as Ralph Lauren, Tommy Hilfiger, Jeremy Scott and Tom Ford were absent on the runways. One of the reasons for this absence is that the 92nd Academy Awards ceremony took place on February 9, 2020 in Los Angeles. Because of this, many designers and models favored LA over NYC during this time. Additionally, Tommy Hilfiger prefers to show his new collection in London and Jeremy Scott prefers Paris. They want to reach new customers. In addition, the return on investment in NYC is pretty low for fashion brands which must pay a considerable amount for showing their new collections on the runway of various venues, including Spring Studios in TriBeCa. Finally, the business takes place more and more online due to the digitalization of the market.[4]
Next to these business challenges faced by the fashion industry, it is interesting to spot the current litigation surrounding the name “NYFW.” IMG Worldwide and International Merchandising Company sued Fashion Week Inc. (FWI) before the U.S. District Court for the Southern District of New York.[5] Their claim is that FWI uses NYFW to promote its events without the permission of the plaintiffs. The further claim that FWI has no connection with NYFW and does not have right to use the name. In this context, plaintiffs asked the court to award them monetary damages, and to immediately and permanently impeach FWI from using NYFW marks “in connection with the manufacturing, importing, advertising, marketing, promoting, supplying, distributing, offering for sale or selling any products or services worldwide.”[6]
Furthermore, major legal challenges in intellectual property may arise in the fashion industry during NYFW.[7] Designers at NYFW aim at protecting their brands through the legal regimes of copyright, trademark and patent. From the point of view of copyright, the objective for the designer is to protect the creative and artistic aspects of an item. However, copyright law rarely applies to fashion items because they are used for a short period of time. The fixation requirement is not fulfilled. Moreover, clothes are considered useful and such articles are excluded from the scope of the U.S. Copyright Act. It means that copying a dress design during NYFW is not considered illegal in the United States.
From the point of view of trademark, fashion brands want to distinguish themselves from any competitors in order to avoid consumer confusion during NYFW and beyond. Under the Lanham Act, a fashion company can register elements of its design as trademarks if the mark is used in commerce and incorporates suggestive terms as opposed to terms that are merely descriptive. For instance, a fashion company can sue an infringer for trade dress infringement, false designation of origin, false advertising, and dilution.
From the point of view of patent, a designer may want to protect a specific aspect of a product that is unique with a new functional quality during NYFW. This is the case for sports apparel with new functional quality. Nonetheless, design patents do not extend to designs “essential to the use” of a protected work.
To summarize, there are several (legal) challenges during NYFW. First, many designers skip NYFW due to the evolution of the fashion industry and the targeted customers. Second, the use of the name “NYFW” is subject to litigation when third parties use it without the permission of the owners of the name. Third, the theft of ideas and the sale of counterfeit goods at Canal Street and Midtown during NYFW threaten economic opportunities and financial stability of the fashion industry.[8] Indeed, the live nature of NYFW can pose an increased risk to brands to be quickly copied by cheapest brands and sold at a lower price. This explains why designers tend to display and sell “a ready-to-wear” version of their lines directly to customers during NYFW. It is called “See now, buy now.”[9] It becomes too costly for fashion companies to track infringers between the creation of the item for the runway at NYFW and the sale of the item six months later in a retail store. As a consequence, creativity and sophistication of the fashion items during NYFW decrease significantly as business interests of fashion designers have precedence to the artistic creations of fashion items.
[1] History of Fashion Week, Fashion Week Online, https://fashionweekonline.com/history-of-fashion-week.
[2] New York City was the first city in the world to begin organizing shows seasonally. However, the very concept of the “fashion show,” originated in France.
[3] Tina Martin, Fashion Law Needs Custom Tailored Protection for Designs, University of Baltimore Law Review, 2019, https://scholarworks.law.ubalt.edu/cgi/viewcontent.cgi?article=2056&context=ublr.
[4] Chantal Fernandez, What Happened to New York Fashion?, Business of Fashion, February 7, 2020, https://www.businessoffashion.com/articles/intelligence/new-york-fashion-week-2020; Ray A. Smith, New York Fashion Week Faces Designer Exits, Oscars Competition, The Wall Street Journal, February 3, 2020, https://www.wsj.com/articles/new-york-fashion-week-faces-designer-exits-oscars-competition-11580741994.
[5] Blake Brittain, IMG Sues Event Organizer Over Use of ‘New York Fashion Week’, Bloomberg, December 9, 2019, https://news.bloomberglaw.com/ip-law/img-sues-event-organizer-for-using-new-york-fashion-week.
[6] IMG Worldwide, LLC and International Merchandising Company, LLC, v. Fashion Week, Inc., 1:19-cv-11225 (SDNY); The Battle Over New York Fashion Week Continues, as IMG Files Suit Against Fashion Week, Inc., The Fashion Law, December 9, 2019, https://www.thefashionlaw.com/home/the-battle-for-new-york-fashion-week-continues-as-img-files-suit-against-fashion-week-inc.
[7] There also are legal issues in corporate and employment.
[8] Kelly Grochala, Failing the Fashion Industry and Why the “Innovative Design Protection Act” Should be Passed, Law School Student Scholarship Seton Hall Law, https://scholarship.shu.edu/cgi/viewcontent.cgi?article=1135&context=student_scholarship.
[9] Greg Petro, How 'See-Now-Buy-Now' Is Rewiring Retail, Forbes, January 31, 2018, https://www.forbes.com/sites/gregpetro/2018/01/31/how-see-now-buy-now-is-rewiring-retail/#447a6a112c0b.