I just wanted to take a minute to thank you all for your support. This endeavor has enveloped me in ways I never expected. Meaning, I have not been posting as often as I’d like due to my newbie blogger skills. There is a lot to figure out and learn. I have spent the past week trying to iron out a lot of kinks on both Glossy Esquire and Neon Esquire. I’ve developed a publishing schedule that will increase both the quality and quantity of postings and am excited to implement them starting next week. So please, keep checking back. The beginning of summer is not the only thing to start looking forward to next week…
The Anti-Counterfeiting Trade Agreement (“ACTA”) is similar to the whack-a-mole counterfeiters it purports to fight; it just keeps randomly popping up everywhere.
Two years ago, under what some describe as a cloak of secrecy, the Obama Administration partook in the construction of ACTA with a handful of other countries behind closed doors. Over several meetings on several continents, ACTA, as it now stands emerged. Along the way, it picked up more supporting countries and set a minimum standard of rules in the fight against counterfeit goods. Countries that signed ACTA agreed to be bound to these minimum standards and to enforce them via their judicial, police and border patrols.
This was very troubling to many legal professors for various reasons. First of all, the Obama Administration campaigned upon a promise of transparency in government- a somewhat dig at the Bush Administration who many felt were not at all forthcoming with the American public regarding their dealings behind closed doors. Arguably, this promise of transparency was one of the main reasons Obama was elected. Guantanamo Bay, WMDs and the Wars in Iraq and Afghanistan were all fresh in the American memory. Many felt the Bush Administration had duped them into believing / supporting certain presidential policies and reasoning without being provided with the full set of facts first.
ACTA, while originally a Japanese idea, quickly drew the support of the US Trade Office of Ron Kirk, an Obama appointee and an office under the Executive Branch. Over time, the Obama Administration sent delegates around the world for the various meetings held to draw up ACTA as an international agreement without giving much notice to the American people what was going on. (For more information on this process, please read "A Case Against the ACTA" ) Long story short, ACTA was signed by the Obama Administration and essentially became a treaty that they US was internationally bound to enforce via executive order. By doing this, a group of distinguished law professors, claimed that ACTA served to bypass the Legislative Branch, something necessary in order for an international treaty to be binding on the US. Thus, ACTA, as it stands now, is arguably unconstitutional according to the group.
Today on formidable fashion law blog Law of Fashion, a letter signed by the law professors was posted. In the six-page open letter to the members of the US Senate Committee on Finance, the group argues:
ACTA’s subjects – including intellectual property and foreign trade – are matters delegated to Congressional power under Article I of the Constitution. The larger part of ACTA contains dozens of pages of new international law requirements on the shape and scope of domestic intellectual property enforcement legislation, including what types of infringement must be addressed through criminal law, when third party intermediaries may be civilly and criminally liable for infringement by others, and the scope of damages and other remedies that must be available for different classes of infringement. Regardless of whether ACTA requires changes in U.S. law (many claim that it does), these are matters subject to the legislative power vested in the Congress, not in the sole executive province of the President.
As previously mentioned, I worked with Prof. Kenneth Port, William Mitchell College of Law professor, as a research assistant for on his paper against the ACTA. Prof. Port, was one of the distinguished law professors who signed this letter. I say that ACTA keeps appearing like the whack-a-mole counterfeiters because this is not the first time Prof. Port or any of the other professors listed on the letter have attempted to contact the Obama Administration regarding their ACTA concerns. As InfoJustice.org points out:
The letter is the latest in a long series of exchanges between law professors, Senators and the Administration on the validity of the administration’s Constitutional claim that it can ratify the Anti-Counterfeiting Trade Agreement without the Congressional approval that normally accompanies any binding international trade agreement.
While Prof. Port and I were, and still are, at odds regarding the goals, helpfulness and policies behind ACTA, I do admit, the professors make a very strong point in their letter. In my desperate attempts to bring Prof. Port to the “dark side” of fashion law protection, I did have to research this aspect of the ACTA formation and how it ties into the constitutional powers our country relies on. While I do not think ACTA is necessarily a 100% absolute legislative decision only- many executive orders are made by presidents and they can be struck down at any time by sitting or future presidents- I must agree that the lack of transparency in this matter is troubling. Not in so much that I think ACTA is corrupt but rather, I would like to see greater IP protections afforded to designers without the stigma of things being done under cloak and dagger. It makes the public more suspicious, especially when juggernaut retailers like LVMH stand to profit greatly from such policies and they are in essence given the power to hold public governments responsible for supporting private business property rights.
I am so happy to share this post with all of you today. In what is probably one of the proudest moments of my life, an article I served as a research assistant on was just published by the Cardozo Law Review. William Mitchell College of Law’s IP Institute Director, Professor Kenneth L. Port, authored A Case Against the ACTA. (33 Cardozo L. Rev. 1131) I was lucky enough to be asked by Prof. Port to be his research assistant on the piece due to my background in luxury goods and fashion law. While I may thoroughly disagree with just about every single statement Prof. Port makes in the piece (see footnote 1a), doing the research for the article and working in an environment where spirited debate over the topic occurred on a daily basis was the highlight of my law school career. I owe Prof. Port my sincerest gratitude for bringing a fighter such as myself on board when he knew how opposed I was to his point of view and that I do not back down from any challenge. In other words, he knew what he was getting himself into and went ahead with it anyways. To his credit, Prof. Port does not like “yes men” when writing an article. He prefers working with at least one other person who vehemently disagrees with him on the topic because it makes the end product much stronger. That was certainly the case on this article!
Like the saying goes, “The best offense is a good defense.” So our constant attempts to convince one another that they were wrong not only improved the paper but it also strengthened my own arguments and beliefs. It was as if I was preparing for battle everyday armed with research results, articles, books etc. all to prove my point as I went in to meet with him. Once the battle begins, the holes in your argument which you were unaware of / blind to, are quickly exposed. I would return home, research more to fix those holes and then tested how well my new theories worked in the next day’s battle. This process was rewarding on so many levels. Not only was I able to garner a better understanding of the issues at hand but also I achieved greater strength in my convictions and more self-confidence in my arguments. Too many people these days declare they are “right” on an issue and don’t listen or bother to research the other side’s point of view. I cannot stress enough how helpful and meaningful working for the other side is in legal related matters. That’s why so many prosecutors go on to make great criminal defense attorneys. To truly know and strengthen your own offense, you must first develop a nearly impenetrable defense. Work with the opposition whenever possible!
The Anti-Counterfeiting Trade Agreement (ACTA) is an initiative by the Obama Administration to get all countries unified and take a stronger police action in the fight against counterfeit goods. While the paper focuses on the luxury counterfeit goods market (such as fake Louis Vuitton bags or Air Jordan sneakers) it is important to note that ACTA also applies to things like counterfeit toilet paper (a real thing!), counterfeit perfumes and counterfeit prescription drugs. While counterfeit toilet paper is kind of funny, counterfeit perfumes and drugs are no laughing matter. Fake perfumes have been found to contain anti-freeze, urine and pesticides among many other things no person in their right mind would ever want to spray on their body. The real killer, literally, are the counterfeit prescriptions. There have been many cases where unsuspecting people take things like heart or blood pressure medication thinking it is the legitimate pill their doctor prescribed only to die because the version they were taking was counterfeit and did not contain the right (or in some cases, any) active ingredients necessary for their health condition. Lest you think this only happens when people buy drugs in Mexico or from online sources, think again. There was a recent case in Canada where at least 10 people died because their pharmacy had unknowingly received and dispensed a counterfeit cholesterol drug.
While ACTA is necessary to fight such counterfeit evils, many consider the fact that it also applies to counterfeit luxury accessories as “frivolous.” Some people don’t think private label luxury brands like Louis Vuitton need protecting from counterfeiters at the government’s expense. However, people fail to realize that counterfeit luxury accessories have far reaching human-interest issues at stake just as counterfeit pharmaceuticals. Children have been sold into slave labor to create these goods in Asian countries. The actual materials used to make the goods are found to contain elements like lead. The proceeds from the sales of counterfeit goods are used to fund underground organized crime and some allege that counterfeit profits have been used to support terrorist cells. This paper tries to dispel these facts and figures and through my research for the paper, I found some of the arguments floating around regarding counterfeit goods have never been definitively proven. (Such as the terrorist link.) That was eye opening to me, that maybe the problem is not as severe as some may lead us to believe…in some cases. In other cases, the effects of counterfeit goods are deadly and to save people’s lives, ACTA is necessary. But that is just my opinion. Read the paper and see if you agree with me or not.
Part I of II: The Background
It’s only Wednesday yet so much has happened this week in the world of fashion law I can hardly keep up! I feel like I could do a post about the week in review right now and just phone it in for the next few days! But, that would not be very tenacious of me and frankly, when it comes to fashion law; I am like a dog with a bone. So let’s dive in and begin!
J.C. Penney has recently garnered headlines due to their major business model overhaul. The company fired and hired a whole new team of upper level management to help stop the hemorrhaging of profits and giant drop in sales the department store has seen in the past few years. The once behemoth retailer used to have a real edge in the lower priced goods market. However, over the past ten years many more stores have exploded on the scene and Penney’s lost a huge percentage of their market share as a result. Kohl’s, for instance, really hit Penney’s where it hurt. Even though their stores were smaller in size, the Wisconsin based retailer was able to capitalize on their private label clothing lines driven by designers like Vera Wang and Lauren Conrad of “The Hills” fame. This sort of name brand quality design meets mass marketed clothing was not really in Penney’s repertoire. Penney’s had a knack for picking up brands that had lost their luster to create lines for their store like BONGO denim after the 80’s-90’s were over. Target, another major competitor, followed the same sort of business model: get the designers to create private label lines for the store while they were still hot. Clearly, this past fall’s Missoni for Target madness proves that customers are not drawn in by brands that are now unpopular enough to team up with a department store. Customers know brands, they know labels and thanks to various forms of fashion media, they know what’s hot. They are savvy and want what they want when they want it hence, the popularity of Target and Kohl’s diffusion lines, which has driven their sales and profits through the roof. As a result, Penney’s profits have been driven into the ground.
Penney’s also offers more than clothing- they have a huge assortment of home goods. From furniture to blenders to drapes and mattresses, you could use Penney’s to outfit an entire house. But that was part of Penney’s problem. They simply offered too much stuff and were a jack-of-all-trades but master of nothing. Again, Target came in with a much narrower, more thoughtful offering of home goods that kept consumers focused. Target also drew upon the power of hot home goods designers like John Derrian to create a private label collection of goods that would draw “in the know” customers into the store by droves. Wal-Mart and Kohl’s took control of what I call the “portable appliances market” (things like coffee makers, blenders etc.) by buying more of the goods in bulk and continually offering the goods at a lower everyday price than Penney’s whose customers would have to wait for sales to score the same goods at the Wal-Mart/Kohl prices.
So Penney’s decided to reinvent themselves and the way they do business. If you’ve watched any TV recently, you’ve undoubtedly noticed their non-stop ads touting their “new” retail strategy/image: Fair and Square. The idea being, customers would no longer have to put up with having to wait for “BOGOs,” buy one get one sales. Or “Doorbusters,” sales that start early in the morning and reward the shopper for skipping the snooze button with a limited time lower price offering on items.
On a personal note, I find it funny that Penney’s talks about these sales like they are superior to the mindless drones that created such “horrendous” retailing methods because, well, Penney’s is the store that created this mob mentality of shopping. (“I must get there NOW! NOW! Push grandma out of the way! Penney’s and I are busting doors!!!!”) Their tone in some of these commercials makes them sound disgusted that anyone could ever have created such a pitiful marketing campaign. I kind of want to shake them and say, “You know YOU created all this, right?!”
I should probably take a moment to make some full disclosure here because I do pride myself on being honest and truthful. I did work for Penney’s corporate offices for a short while; very short. Like just a few months short. There was a big reason I left that I will not get into. Just know that personally, I found Penney’s ways of doing business to be extremely unpalatable, unpleasant and frankly, legally questionable. I knew a sinking ship when I saw one and so I jumped. But I digress.
Penney’s new business model of just buying in bulk and reordering based on their vendor’s predictions of sales and not their buyers’ research led them to just cut over 300 merchandising positions from their corporate Plano, Texas headquarters. They now essentially have a computer system analyze sales and send those reports to their vendors instead of human buyers doing the legwork. From those reports the vendor decides what, when and where to replenish goods. It shifts the allocation responsibility from the retailer to the vendor; something I am not sure is the best idea. (Again, full disclosure, I was an allocator in past lives and that is what I did at J.C. Penney.) I am sure many other retailers use a similar system of buying and replenishment so I am not going to knock Penney’s for that.
One of the many awesome things to come out of my attendance at the Fashion Law Institute was the fantastic new people I've met along the way. This includes the super smart and talented ladies Sheba Sheikh of The Fashion Grid and Julie Zerbo of The Fashion Law.
Both are current law students really making an impact in the world of fashion law since starting their respective blogs. I am always amazed at the time and energy the two of them are able to muster to create such awesome posts with unique points of view. And they blog often to boot!
Tumi went public on the New York Stock Exchange on April 19 and was very successful in their public offering raising $338 million. WWD cites a boost in the strength of the luxury sector for their success as well as an upswing in tourism- something very lucrative for a luxury luggage brand whose travel products make up 46% of their net sales. And when those travel products range in price from $295 for a woman's fabric tote to $995 for a deluxe wheeled leather brief with laptop case, as Martha Stewart says, that's a good thing.
When I started law school, I was no spring chicken. I'd already spent nearly ten years in corporate retail at various merchandising positions. The companies I worked for were mostly luxury good retailers and while the glamour quotient was pretty high, my happiness level wasn't. I wanted to do something more. I wanted to help people. Yet, I also wanted to remain in the only industry I ever knew and loved: fashion. The idea of becoming an attorney for fashion designers was born. However there was one small problem. According to a professor / dean at my school there was "no such thing" as fashion law. Undeterred, I continued my studies, focusing on intellectual property (IP) law. One year later the very first fashion law textbook was released. Soon after that, I learned that the Fashion Law Institute was recently established at Fordham University's Law School by the fashion law pioneer, Professor Susan Scafidi. Shortly thereafter, the Fashion Law Institute offered a Summer Intensive Bootcamp- i.e. a crash course in all things fashion law related. After enduring many long, tedious, lonely arguments with fellow IP students regarding the merits of giving fashion artisans increased IP protection, I jumped at the chance to be around some like minded people! Admitted into the program, I spent a whirlwind of two weeks in New York City attending fashion law field trips by day and going to class at night. Safe to say, there is clearly now "such a thing" as Fashion Law.
The existence and importance of the Fashion Law field is further evidenced by the success of the Fashion Law Institute's Second Annual Spring Symposium entitled FASHION = ART + COMMERCE. I found the the title of the symposium alone to be very intriguing because it is the most basic, fundamental and clear definition of what fashion really is: a combination of art and commerce. Based on the event's astute title- I knew that this event would be exciting and provocative. Despite the fact that I am located in Minnesota, I made a special trip to the city to attend this all day fashion law event. I was not disappointed.