It was a legal dispute that made headlines. When designer label Christian Louboutin sued rival Yves Saint Laurent in 2011 for using red soles on a pair of heels, many did not see why they should be fighting to claim a colour as their trademark.
Such a high profile case, however, has illustrated the need for lawyers to be well versed when it comes to fashion.
“It’s vital for brands to be in the know, to be aware of the laws that apply to them. A legal person hired to represent these brands should be familiar with the industry as well,” says Affendy Ali, a Malaysian lawyer who has chosen to specialise in fashion law.
According to the 28-year-old Sabahan, the field is based upon a categorisation of established law principles. Knowledge on contractual, commercial and intellectual property law is needed, but more than that, one has to understand how fashion businesses work.
“Generally, fashion law is seen as a fluff subject, but it’s becoming popular in countries like the United States. It’s an important emerging legal specialty. I think the term fashion law became popular in 2012 or so, when the business of fashion became more complex – thanks to emerging issues in the fashion industry,” he explains.
Affendy notes that the Louboutin suit can be considered as one of the landmark cases of recent times. While it involves competitors within the fashion industry – in this instance, two very well-known brands – fashion disputes also take other forms.
Nike, he says, filed a suit in 2014 against three former employees when they left to work for Adidas. All three employees reportedly had non-compete agreements preventing them from working for a competitor within a year of their employment with Nike.
In 2015, Rihanna started a legal battle against Topshop for using her image on a T-shirt without permission. It was said to give a misconception that the singer-songwriter actually endorsed the high-street retailer.
Not all legal disputes involve big brands or companies though. Affendy points out that when fashion designers start their own label, they will have to deal with production agents, manufacturers, intellectual property agencies and retailers. This is where a lawyer specialising in fashion law comes in.
“Ideally, every designer should have a legal person that looks out for him or her. The contracts signed governing the relationship with a third party should effectively work to help protect the rights of the designer.
"Designers also need to consult a lawyer when they pitch for funding. An investment agreement is not a simple two-page agreement. When it comes to intellectual property rights, on the other hand, the law can work in protecting a brand’s trademark.”
So why the need for fashion lawyer? Why can’t a designer go to any general lawyer? Apparently, it makes a lot of difference if a lawyer has some prior knowledge or experience of how a fashion company works.
“I’ve been asked this a lot. Why do we need this sexy term – ‘fashion lawyers’? Some would even say that it sounds a bit self-conceited. Well, a fashion lawyer can probably understand designers better and the quirks their businesses come with,” Affendy states.
Affendy also thinks that a good fashion lawyer needs to indulge in the fashion industry, especially how fashion businesses operate. He is of the opinion that fashion lawyers can help designers decide the best way of strategically moving forward with their labels.
“Take for example, Douglas Han. He’s a lawyer based in New York who has worked with various fashion brands. The way he sees it, fashion lawyers contribute more than just legal advice. They also help structure a fashion business.”
Business is business
To designers, at least the ones who have actually founded their own labels, the whole legal “thing” is something they have to put up with – whether they like it or not. It is viewed as part and parcel of the fashion business.
Couturier Fairuz Ramdan reveals that he was already acquainted with lawyers from different backgrounds before he started his company. He says it is always better to hire a lawyer who has experience working within the fashion industry.
“If not, try finding one that has a business background. What matters most is that the person can get things done. After all, friends can become enemies. In business, even where fashion is concerned, it all comes down to the money.”
Vincent Siow, the founder of menswear label Comoddity, thinks that contracts in Malaysia itself are pretty straightforward. He doesn’t engage a lawyer unless he is signing off on something more complicated like a retail lease.
“When it comes to agreements with international parties, however, I absolutely seek legal help. Those contracts can be as long as 40 to 50 pages and sometimes even drafted in two languages!” Siow states.
“As a designer, I deal with everything from leasing to consignment, trademark and wholesale contracts. I guess, if you are able to find someone who can handle everything, great. Otherwise, you’ll have to go to a number of different lawyers who know these stuff.”
Last year saw the Fashion Law Institute of Fordham University in New York launching two academic fashion law degree programmes. The move was considered to be the first in the world, although some institutions have long offered short courses and “boot camps” on the subject.
“The aim is to get myself certified. Yes, at the moment, anyone can call themselves a fashion lawyer, but I think what gives someone an edge in the field is the exposure in the industry,” Affendy says.
Affendy himself has worked with local designer Tengku Syahmi in the past. Within that role, he handled legal, communications and business development for fashion label Tsyahmi. Prior to that, he was a legal associate in a law firm in Kuala Lumpur.
“I was born and raised in Kota Kinabalu. I only moved to KL to pursue my law degree. Upon graduating, I did my pupilage posting in KL and KK, after which, I was called to both the High Court in Malaya and High Court in Sabah and Sarawak,” he relates.
Affendy is currently the legal manager for government investment arm MyCreative Ventures, which approves funding – either in the form of loans or equity – for creative-related businesses in Malaysia. Fashion just happens to be one of the many sectors that MyCreative Ventures supports.
Malaysian labels and designers like Comoddity, Tsyahmi, Fairuz Ramdan, Melinda Looi, Pearly Wong, Off The Rack Asia, Nelissa Hillman and My Apparel Zoo, amongst others, have all received funding from MyCreative Ventures.
“What designers in Malaysia should know is that the business of fashion is not only about creating a fashion label and creating designs. It is a business at the end of the day where the fashion label is required to make sound business decisions. This is where the legal aspects come into play,” Affendy cautions.
“People may see fashion as glitz and glamour. Not entirely correct. It is also hard work and long hours. What you see on runways are pieces that are produced after long hours of thought and work – both creative and commercial.
"As for fashion law, a conservative lawyer might regard it as frivolous. However, its development is much needed and goes hand-in-hand with the constantly developing global fashion industry,” he adds in conclusion.