Brittany Rawlings (Brittany Rawlings)
In many ways Brittany Rawlings, 28, personifies the South Florida fashion world.
Celebrity-conscious, tech-savvy and entrepreneurial, she started a jewelry collection while studying law at Nova Southeastern University. Her gold-and-gemstone creations have adorned the covers of In Touch and Today’s Black Woman magazines and pop luminaries like Giuliana Rancic and Tyra Banks.
Now with her own practice and admitted to the bars of Florida, New York and Washington, the Naples native spreads the message to other young designers and attorneys that intellectual property law empowers the fashion business.
“Fashion law is unique because of the idiosyncrasies of the fashion industry that really make it its own little devil, just like sports law,” said Rawlings, reached on her cell phone in the Georgetown section of Washington.
On a typically atypical work trip, she had just served a demand letter on behalf of a fashion designer after a retailer breached a purchase order at the last minute. Going where the clients are, she frequently finds herself in New York, still and always the nerve center of U.S. fashion.
Increasingly, Rawlings has company practicing fashion law in South Florida. For the past decade as the region, especially Miami and Miami Beach, attracted more artists, musicians and couturiers, their arrival has energized the intellectual property lawyers who preserve and protect their greatest assets.
IP boutique Espinosa Trueba is focusing on fashion and has its own counsel with a couture pedigree, Francesca Russo. So is the full-service firm Foley & Lardner, which in March launched an initiative in Miami’s hip Wynwood district to help emerging fashion professionals grow their businesses.
The lawyers know the big fees come from litigation to secure and safeguard brands, patents and trademarks. They say beginners need advisers to guide them to the point of having something significant and lucrative to strengthen and defend.
The Mark Market
“If you help a brand owner get their mark, clear their mark, they’re going to call you when they need you to enforce their mark,” said Laura Ganoza, a partner in Foley’s Miami office who coordinated the Wynwood program for emerging designers.
“Fashion designers are creative people, but at the end of the day they want to run a successful business,” she said. “They have to recognize that there’s a business aspect to what they do, whether it’s protecting brands or working overseas or employment. These are the kinds of issues that we can help navigate for them.”
Two-way loyalty brings tangible rewards to both lawyer and client.
Four years ago when Christina Bracken started ZEMgear, her athletic footwear company, she found Christopher Van Dam through a Key Biscayne neighbor. Van Dam is a solo IP practitioner in Miami who collaborates with a handful of small firms.
“He made a tremendous effort to understand what we do,” said Bracken, whose description of a beach volleyball shoe sounds like a scientific treatise. “He was very inquisitive in asking creative questions so he could help us describe our product in a comprehensive and expansive way that we might not necessarily have thought of.”
Today ZEMgear distributes in 30 countries and locally through retailers in Key Biscayne, Miami and Jupiter. When the company had a trademark dispute with a competitor, Van Dam handled the litigation.
He said patent prosecution and defense is his bread-and-butter, and there aren’t many bakeries around.
“Most startups don’t have the budget for a lot of IP protection. They’re looking at getting their product out there,” Van Dam said. “The longer they’re registered, the more effective they’re going to be.”
Miami International University of Art & Design is producing some future clients of the IP bar. On the site of the old Omni building in Miami’s Performing Arts District, the school has 850-plus fashion students and employs more than a dozen full-time faculty members and another couple dozen adjuncts with real-world experience.
Charlene Parsons, chair of the fashion design department, participated in the Wynwood program. She encourages interaction between fledgling fashionistas and attorneys.
“Sometimes without a lawyer they make a mistake, and with the laws changing constantly in importing-exporting and where you’re going to manufacture, and licensing … a person could sign their life away before realizing they need somebody to read the contract,” she said.
Joseph Roisman, executive vice president of Doral-based Perry Ellis International Inc., is working with the Beacon Council to create an “incubator” for fashion startups. The location is still to be determined, but two of the obvious contenders are Wynwood and the Miami Design District.
“It’s a monetary investment in an area where up-and-coming students can share back-office expenses like cutting rooms,” he explained. “They can share that and have a place where they can do their designs, and then once they start selling they go out on their own.”
Roisman, a 44-year industry veteran, has learned: “When you have your own brands, you’re the master of your destiny.”
Perry Ellis has an in-house legal department that includes, among others, an attorney assisted by three paralegals whose primary duties are licensing and trademarks, according to general counsel Cory Shade.
With reported revenues of $912 million for fiscal 2014, the publicly traded company owns or licenses a portfolio of brands such as Jantzen, Nike and Laundry by Shelli Segal and distributes at all levels, from wholesale to retail outlets and online.
“The young people are not aware of the implications of not protecting their brands or designs,” Roisman said. “They need to be educated as to what might happen if they don’t protect them.”
In fashion, as in most enterprises, there’s a huge gap between theory and practice. To cultivate this niche, IP lawyers must master the idiosyncrasies.
“Typically, when parties enter into a business transaction, it’s common to have a written contract, but in the fashion industry many times manufacturing or design personnel would not feel comfortable signing those contracts,” said Rawlings, the IP lawyer and jewelry designer. “Ultimately, the industry is built on secrets, and no one wants anybody else knowing their secrets.”
Consequently, fashion has evolved into what she calls “an opaque industry where only a few designers have the access, contacts or know-how.”
That would seem to bode badly for the next Coco Chanel, but America, unlike France, has a tradition of independent fashion design. The tension between fostering creativity and protecting fashion IP is considered more akin to music and art than to prosaic inventions like mousetraps and hard drives.
This tension plays out in the court system.
In 2012 the battle of the red soles between Christian Louboutin and Yves Saint Laurent captivated the fashion bar.
The Parisian fashion houses fought over Louboutin’s U.S. registration for its red sole trademark. The trademark registration certificate describes this as “a lacquered red sole [on] women’s high-fashion designer footwear.” Stars like Scarlett Johansson strode many red carpets in Louboutin’s two-tone heels, priced at up to $1,000 a pair.
When YSL unveiled its 2011 footwear line featuring a bright red sole on an all-red shoe—there were also yellow, purple and green versions—Louboutin sued, claiming trademark infringement and other injuries. YSL responded that the mark was merely ornamental and functional, not distinctive and entitled to trademark protection.
Following the case intently, IP lawyers were shocked when a federal judge in New York said color itself could never be a valid trademark in the fashion industry and ruled for YSL.
They exhaled when the U.S. Court of Appeals for the Second Circuit affirmed the lower court’s denial of relief to Louboutin but upheld its mark when the red sole contrasts with the shoe’s upper portion. YSL’s monochromatic red shoe made the cut.
“The Second Circuit did a good job of rectifying that blanket statement” about color’s function as a trademark, said Ganoza of Foley & Lardner.
On The Map
Of course neither Louboutin nor YSL would fold after losing a trademark lawsuit. Ganoza said the biggest concerns about IP fashion protection are for the little guys.
“You don’t want to stall innovation and you don’t want a smaller designer being afraid they’re going to be accused of copyright infringement when it’s a large designer on the other side,” she said.
Russo of Espinosa Trueba, who comes from a fashion industry family in Montreal, said Miami’s progress as an art and music center is propelling the fashion industry. She mentioned the annual international Art Basel extravaganza, the new Perez Art Museum and Wynwood, a gallery district where exterior walls are oversized palettes for colorful murals.
“I like to think of fashion and art as having a wonderful harmonious relationship,” Russo said.
Flamboyant fashion statements get live-band backing at Funkshion in Miami Beach every March, July and October. Designers showcase collections “to media, celebrities, international buyers and selected style makers,” according to a website.
But what really put Miami on the fashionista map in 2007 was the Mercedes-Benz Fashion Week Swim, held for five days every July at The Raleigh in Miami Beach. The swimwear show is the southern offshoot of the all-important Mercedes-Benz Fashion Week in New York.
Parsons of MIU was enthused: “That gives you an indication of how important Miami has become.”