What to consider from a legal perspective when launching a fashion brand – WWD
During an online lesson on fashion branding in the Fashion Business Essentials program, Douglas Hand, fashion lawyer and partner at Hand Baldachin & Associates LLP, shared information on some of the legal considerations when deploying a new brand or when naming a company or a collection.
It’s an exercise that needs to be part of a larger and more detailed discussion of branding, which is covered in the more than 30 lessons of the Fashion Branding course. Fashion Business Essentials is offered by Parsons and WWD, and is powered by Yellowbrick.
Here, Hand explains some of the legal considerations as well as the risks associated with working with the brand and protecting a brand from intellectual property theft.
WWD: From a legal point of view, what should be considered when launching a fashion clothing brand?
Douglas hand: There are three “must haves” from a legal point of view when launching. First, the constitution of a legal person (or legal persons) to house the business is essential. This provides protection against founders’ personal liability as well as a platform to issue equity to investors to fund growth.
Branding the brand name not only in the United States but also in other jurisdictions (including China) is imperative as well.
Next, proper processing and documentation of employees and consultants with, in the case of designers, pay-for-work arrangements in place should be in place, lest the brand risk not actually owning the intellectual property. created by these workers.
WWD: If a brand owner is looking to collaborate with other brands, what are the risks of a legal POV?
DH: The written collaboration agreement should be very clear on how the collaboration partner can use the brand owner’s mark. Brand tarnishing is obviously not the goal of the collaboration and it can be done in a number of seemingly innocent ways, such as using off-brand marketing, influencers, or distribution channels.
Exclusivity and tenure are also important to consider. If a brand collaborates with, for example, an eyewear partner who anticipates that the brand cannot enter the eyewear business during the duration of a longer-term collaboration, it could miss a license or of a much more lucrative property of this category of products. .
WWD: What are some of the basic steps brand owners can take to protect themselves against intellectual property theft or trademark infringement?
DH: Trademark registration of the mark is certainly an important step and must be done not only in the United States but in all relevant, and even potentially relevant, jurisdictions for the activities of the mark. China is a notable example because it is always what is called a “first to file” jurisdiction.
This means that an enterprising brand troll in China can (and in my experience will) file and register the same name as a trademark of a trademark without any legitimate intention to actually use the name in trade (such as US law requires it). Then the troll will simply force the brand to pay them to give up the trademark or the brand will not be able to sell in China (a massive and massive consumer market).
Registration is the first step, but enforcing your registered trademark rights is also of crucial importance. This requires a brand budget to control the brand and their legal counsel to send cease and desist letters to counterfeiters who are backed by the real threat of legal action. Without a budget to enforce trademark rights, the letter C&D is toothless and could lead to even more brazen appropriation of intellectual property.