Reposted from Law à la Mode, Edition 6 - Summer 2012
By Alexander S. Birkhold (New York)
The recent formation of the Model Alliance, an organization seeking to enforce and expand existing legal protections for models in the United States, has prompted increased US scrutiny of employment and image rights issues in the fashion industry.
Welcome to the Summer edition of DLA Piper’s Law à la Mode, the industry e-magazine which is brought to you by our Fashion, Retail & Design Group. Please click here to view the e-magazine or here to view as a PDF.
With the world's eyes on London this Summer, this edition has been complied by DLA Piper's London editorial team. Putting our British fashion-foot forward, we explore DLA Piper's recent collaboration with Central St Martins College of Arts and Design, as well as considering "When is a free handbag considered a bribe?" under the UK's new and pervasive Bribery Act. Moving further afield, we take a look at the European Commission’s ambitious plans for the European digital marketplace, and our Istanbul colleagues introduce us to the opportunities (and risks) of using Turkey as a manufacturing base. Our US team explore new guidelines for working with models, while our team in Sydney has some top tips to keep in mind when opening an online store. This edition also includes all our regular features, including "A Word from the Industry's Mouth" where we meet Victoria Chang, Belgian lawyer turned Fashion blogger. Finally, following on from our special edition of Law à la Mode to mark the 134th INTA Annual Meeting in Washington, DC, we give you an insight into our exciting INTA event: "Around the retail world in sixty minutes: Reflecting on the top branding issues for retailers in 2012".
We do hope that you enjoy this Summer edition of Law à la Mode. If you have any comments please get in touch with the Fashion, Retail and Design Group via our email: email@example.com.
DLA Piper’s global Fashion, Retail and Design Group is made up of lawyers from around the globe, who combine legal expertise with a passion for the fashion, retail and design sectors.
Those involved in the fashion and retail industries are well aware of the challenges associated with combating the global proliferation of commercial-scale counterfeiting and piracy. With legal rights and remedies often varying on a country-by-country basis, enforcement of intellectual property rights on an international scale can often be fraught with unexpected hurdles and inconsistent outcomes. The Anti-Counterfeiting Trade Agreement (“ACTA”) aims to change that.
On October 1, 2011, eight countries signed ACTA, namely Australia, Canada, Japan, Morocco, New Zealand, Singapore, South Korea and the U.S. A signing ceremony was held in Tokyo by the Government of Japan. Representatives of the E.U., Mexico, and Switzerland attended the ceremony and confirmed their continuing support for ACTA. Those three sovereignties are in the process of finalizing domestic procedures in preparation to sign, and their signatures are expected by May 1, 2013. Collectively, these eleven countries represent more than half of the world’s trade.
By: Bartolome Martin (Madrid)
Some decades ago, the Spanish Tourism Authority’s advertisements across Europe proudly touted that “Spain is different.” In reality, this may indeed be true. Spain is an idiosyncratic country where universality and localism are good friends, crisis and luxury seem to have a passionate relationship, and customs from the past walk hand in hand with the latest trends. This self-contradicting spirit, cultural individuality and inherent diversity are without a doubt reflected in the Spanish fashion market.
By Siân Croxon, Partner, DLA Piper UK
The CJEU has provided some clarification of the law on when EU customs officials can seize counterfeit goods that are merely in transit through the EU.
The story began in 2008 when a consignment of Nokia branded mobile phones arrived in Heathrow in transit from China to Colombia. The customs officer was suspicious and sent a sample to Nokia for inspection which duly revealed that the phones were indeed counterfeit.
The goods were seized at a car boot sale, as part of a regular inspection by Trading Standards officers. The lighters displayed the Olympic symbol and London 2012, which are protected trade marks, and did so without the authority of the controller of those marks, The London Organising Committee of the Olympic Games. Various Olympic-related words and marks are given elevated protection under the Olympic Symbol (Protection) Act 1995 and the London Olympic Games and Paralympic Games Act 2006.
This seizure provides another example of trading standards officers working in conjunction with the organisers of the 2012 Games to seek to prevent so-called ambush marketing. We understand that steps are now being taken to trace the supply of these lighters.
On March 17, 2010, President Obama signed S. 2968, Trademark Technical and Conforming Amendment Act of 2010, into law as Public Law 111-146. Included in the new law was the requirement for a study and report, due one year later, on the effect of abusive trademark litigation tactics on small businesses. The study and report was to be completed by the Department of Commerce (DOC), in consultation with the Intellectual Property Enforcement Coordinator (IPEC).
Our group spends a significant amount of time working on issues relating to the transformation of copyright and trademark laws in the 21st century. I am particularly passionate about and interested in how the Internet and other new technologies challenge these dynamic areas of law. For my first blog post, I revisited a few of what I see as the most influential cases of 2010.
Overview: In January, U.S. District Court Chief Judge Michael Davis for the District of Minnesota remitted a 2009 jury award of statutory damages totaling $1.92 million against defendant Jammie Thomas-Rasset by 97% to $54,000. This damages award arose from claims that Thomas-Rasset willfully infringed plaintiffs’ copyrights by downloading 24 songs using the Kazaa peer-to-peer network. Judge Davis held that although Plaintiffs highlight valid reasons that Thomas‐Rasset should pay a statutory damages award, the Judge ruled that these facts simply could not justify a $2 million verdict in this case. He further opined that although this new award was still three times the statutory minimum, this reduced award remains “significant and harsh” and should sufficiently serve both the deterrent and the compensatory purposes of statutory damages.
Overview: The plaintiffs rejected the reduced damage award and, instead, asked for a new trial on damages. On November 4, the jury returned a verdict awarding statutory damages in the amount of $62,500 for each of 24 songs for a total amount of $1.5 million.
Takeaways: P2P file-sharing cases are having a profound impact on the future of copyright as applied to individual users of online platforms. Judges in at least two jurisdictions have changed the jury awards -- both citing them unconscionable -- potentially leading to not only a split in future appeals but also calls for legislation from all sides.