Jan 4, 2018

Fashion And Law In An Emerging Economy | Toju Dottie

Ralph Lauren once said that "Fashion is not necessarily about labels, it's not about brands. It's about something else that comes from within you". He was basically alluding to the fact that fashion in its tangible form - is a statement. A statement of simplicity or explicit extravagance. These statement have been in forms of accessories, scents, or general combination of various fabrics to make distinctive apparels as is common in Sub Saharan Africa. On a personal front,fashion has been a medium for projecting a bit of my personality and current mood.

Growing up, threads, needles and sewing machines were common fixtures of my childhood- thanks to my mother's love/ hobby, which eventually became her "main hustle". Looking retrospectively, being around the entire creative process led to my lifelong fascination with everything fashionable.
Recently, I was opportune to attend a private viewing of a Nigerian Fashion Brand (MAZELLE) Summer Spring 2018 Collection- it's definitely worthy of note that the fashion industry in Nigeria, has evolved from the era of "Obioma" (road side tailor) to a recognized industry. This evolution has definitely brought to light the need to have a formidable regulatory body/ association to advance and advocate the cause of the fashion Industry in Nigeria. A body, similar to The Arab Fashion Council, British Fashion Council and The Council of Fashion designers in America. These councils have and are continuously contributing to the longevity of the fashion industry in their various economies.

In light of aforementioned and given the unique situation of the Nigerian Fashion Industry- The below list ( neither conclusive nor an exhaustive list) will help emerging fashion entrepreneurs, fashion enthusiast and established brands understand few legal frameworks and issues associated with a fashion establishment.

1.     Setting up a Fashion Enterprise – This involves the incorporation of the business, structure and funding of the business.  In developing personal names as fashion brands, designer should be aware that there are a number of risks that could arise- in the event the company is sold they might lose the right to use their names in the industry. They might also encounter hurdles in registering their personal name as a trademark. Structure and funding of a business ( whether fashion or not) is an integral part of any organization as it sets the foundation and the core of the business.Case- Kylie Minogue Vs Kylie Jenner- Kylie Jenner filed to register the name KYLIE as a trademark in relation to advertising services and endorsement services but was blocked by way of an opposition application brought by  Veteran Australian Pop Star Kylie Minogue citing possible confusion and damage to Minogue’s Branding. According to papers filed in the US patent and Trademark Office ( USPTO), Minogue’s legal team noted that their client a renowned performing artist , humanitarian and breast cancer activist already owned  KYLIE related trademarks in the US in several industries as well websiteswww.kylie.com. However Minogue’s team withdrew its opposition so there is a possibility they agreed to a settlement. 

2.     Intellectual Property Issues- This boarders on Trade mark registration, Design protection and copyrights involved in the business. We have seen this play out with the different litigation cases that have occurred involving brands like Christian Louboutin, Yves Saint Laurent (YSL), Gucci and Forever 21 e.tc. Knowing the exact type of Intellectual Property that pertains to the business and the laws involved is fundamental in the industry to protect the brand and enforce rights attached to it.  Case- Christian Louboutin Vs Yves Saint Laurent(YSL) – Shoe Designer Christian Louboutin battled YSL in court over ownership of his famous red soles. The litigation began when the French house launched a collection of shoes in a range of colors , each with a sole that matched its upper. The court held that Louboutin could not prevent other brands from creating red shoes with red soles, but that no other brand should create a shoe contrasting with a red sole as that was likely to cause confusion for customers who would assume the shoe was by Louboutin. Christian Louboutin who holds a valid US trademark is headed back to court again to protect his trademark in the European Union; hence making sure that European brands adhere to the guidelines.

3.     Retail-  This deals with the final product reaching the consumers either from a storefront or via online platforms. Ensuring PCI (payment card industry) compliance with every transaction is key when transacting online.There is also a duty to secure the customer’s information.

4.   Contractual Relations- Validity and enforcement of contracts such as Employment ( Labour matters) , Sponsorship and Sales agreements, Licensing , partnerships and franchise e.tc

5.      International Trade- This involves expanding the business. This will also raise several issues and engage several regulatory bodies such as the  Standard Organization of Nigeria, The Nigerian Export and Promotion Council and the Nigerian Custom for border control. These bodies usually render advise and enforce Intellectual Property Rights of brand owners against counterfeiters.

6.     Marketing- This is one of the major factors in the fashion industry as it involves introducing the brand to its consumers or the general public. This is where social media platforms and fashion bloggers have created a niche for themselves and have held the power to shape the public’s perception of the brand. Brand owners have a right when the blogger’s narrative is not true or slanderous of the brand. Bloggers should be aware of copyright laws on infringement with a focus on content ownership and syndicated issues. The blogger should also be armed with the( knowledge of) defence of Fair Use in its application to posts especially in photography and where to get photos.

Engaging the services of a lawyer is absolutely important to navigate through the industry.

Disclaimer: This article is only intended to provide general information on subject matter and does not itself create a client /attorney relationship between the reader and the author. Specialist legal advise should be sought about the readers specific case.

Toju Dottie
Senior Associate & Consultant
George Ikoli & Okagbue

Source - Linkedin