[Author’s Note: In a bit of sad irony, my initial draft of this post was written just as news of Kate Spade’s suicide broke on June 5th. Honestly, I knew very little about her except that she (1) designed handbags and (2) is a local icon here in Kansas City. She grew up here, and attended high school a mere two miles from my house. As I’ve come to find out, she brought some Midwestern sensibility to the fashion game, and thus made a pretty big impact on a pretty big industry.]
I’ve attended a lot of CLE lectures over the years, but the best one I ever saw was overseas.* All of the best ones are connected to some sort of long flight, because if you’re in Rome or Paris or Istanbul or Oxford, how bad can the lecture possibly be? Just the setting alone makes them interesting.
Until a few years ago, I had no idea that “Fashion Law” was even a thing. I doubted highly that designer clothes mattered even a bit in the great grand scheme of the universe. Then I heard my friend Layne Randolph‘s lecture on trademarks and trade dress, and I was astounded to discover that, not only was this really “a thing,” but the thing matters– immensely. I simply hadn’t ever contemplated the economic value of high-fashion brands. I’d always viewed Ralph Lauren and Kate Spade and Vera Wang and Manolo Blahnik as a just bunch of fussy/snooty people that were waaaaay too proud of themselves and their work-product. It didn’t help that I’m a big guy, and fashion houses aren’t exactly beating my door down, begging me to buy their stuff. It also didn’t help that many years ago, an ex-girlfriend routinely forced me at emotional gunpoint to watch Sex & The City with her. I hated every excruciating moment of it, and I hated fashion designers by association.
But Layne’s presentation was awfully compelling. As a newly minted J.D., I found the just-filed Christian Louboutin suit against Yves Saint-Laurent an excuse to pay attention to her query: whether Louboutin’s iconic red soles were protected as a mark or dress. It was a pretty compelling legal question.
You learn something new every day, right?
Well, a few weeks later, I plunked down nine dollars to see the third and final installment of the Men in Black series. In the opening scene, a rather curvy alien woman walks down a hallway in a super-duper-maximum-security prison on the moon (hey, I didn’t write it) to spring her boyfriend/boss, one of the guys from Flight of the Conchords (I said I didn’t write it).
Of course, movies these days are all about prurient interests, so the very first action shot is of the bright red soles on the woman’s thigh-high boots as she walks away from the camera while it slowly rises to a very high-cut leather mini-skirt and… well, you get the idea. Just what every twelve year-old boy wants to see at the movies.
Being a twelve year-old boy myself (our bodies age, but our brains’ development arrests in the 7th grade), one would think I’d follow the camera and enjoy the highly inappropriate objectification of a woman’s body. Nope. I was fixated on those crimson soles and the legal issues surrounding them. I wondered how many lawyers were involved in the licensing agreement that Columbia Pictures needed Christian Louboutin’s people to sign, just for that one shot, and w0w, what a waste, because the product placement value of this particular trade dress in a scene targeted to twelve year-old boys is…
Dammit. I’m an adult. And a lawyer to boot. (See what I did there?)
Now that I handle service abroad nearly full time, I still can’t watch that movie and not ponder the procedural implications. What if a Dutch company decides to make a cheap knockoff of the same boot? What are the procedural hurdles?
Well, watch the latest Louboutin kerfluffle unfold and you’ll find out.
In short, y’all, the world has reached globalized status, and all the ire the Tea Party can muster is not enough to put the Genie back in the bottle. Litigation crosses borders more now than ever, and although we lawyers like to think the law has streamlined itself since the dawn of the internet age… nope. Not as much as you might think. In much of the world, service of process is still effected in the same manner it was in 1965, when the Hague Service Convention first came about. The treaty is still mandatory, and it’s still exclusive doctrine, so trademark and trade infringement suits must still be properly served. Pay attention to detail. It matters.
* Shameless plug: UMKC Law hosts a couple of CLE Abroad programs every year, and I have the privilege of speaking on many of them. The trips are a whole bunch of fun… and potentially deductible.**
** You bet your sweet bippy there’s a disclaimer on this one. I’m not a tax lawyer and, if you’re reading this, neither are you. So seek specific professional advice on whether you can deduct an overseas CLE trip (or how much of it you can).