[Guest post] The Virtual Fashion Law Update – Event Report

For many of us up and down the country, our daily routines have changed quite drastically in the wake of COVID-19. The lengthy morning commute has gone from dashing for the Tube in suits and heels, to shuffling into the living room in dressing gowns and slippers. Meetings and social interactions now take place over a webcam, and ‘Zooming’ is a new way of life for many businesses. Our personal lives and work lives, for the most part, are still continuing – albeit not perhaps as we knew it before.

The same can be said of Fashion Law London’s Summer Review, led by London trio Eleonora Rosati, Rosie Burbidge and Giulia Gasparin. Instead of postponing their much anticipated and highly educational insights into the shape of fashion law today, the team decided to move with these ‘unprecedented’ times and take their teachings online.

Splitting their lectures into three digestible one-hour sessions, Eleonora kicked off the modules on Monday 29 June 2020 with the latest developments in the area of trade marks and copyright. Eleonora took us through key cases involving well-known brands such as Birkenstock, Louis Vuitton and Moon Boot, to discuss the difficulties posed by showing ‘distinctiveness’ for less conventional signs. She also reflected on the seemingly revamped role of other absolute grounds, including the substantial value one in Article 7(1)(e)(iii) EUTMR/Article 4(1)(e)(iii) EUTMD in the aftermath of the important Gömböc ruling.

Tackling the complex area of copyright also, Eleonora covered important case law, including Levola Hengelo and Cofemel, to illustrate the law in this area and how these cases have been applied to fashion-related works. Eleonora highlighted and discussed key recent cases including Wycon v KIKO, Ilse Jacobsen v Morso Sko Import and finally, Brompton Bicycle. Eleonora looked into cross-cultural approaches to copyright, comparing the UK, US and EU, to give attendees an insight as to how the concept of originality is to be intended and how alert those with an interest in this area should remain with regards to key developments.

Rosie picked up the baton from Eleonora on Tuesday, taking us through the benefits of registered and unregistered designs for the fashion sector. She then offered a quick reminder of the impact of SkyKick and the practical impact of this much awaited decision. Rosie subsequently looked more at the impact of COVID-19 and Brexit on IP law. Rosie explained that COVID-19 has had a major impact on the IP law sector due to the long pause at the UK Intellectual Property Office (known as “interrupted days”) and the inevitable impact of COVID-19 on IP budgets. Rosie highlighted the risks associated with scaling back IP spend, particularly in the context of the global financial crisis. She noted that short term savings run the risk of missed opportunities for brands, bad faith applications, non-renewals and other key concerns.

Rosie looked into the implications of this, including the opportunities of new technology such as virtual hearings, electronic disclosure and the end of the fax machine!

Additionally, now that the deadline for extending the Brexit transition period has passed, Rosie explained the importance of securing registered EU rights in advance of the key deadline (31 December 2020) as well as identifying some of the questions that remain. To round off the session, Rosie looked briefly at how COVID-19 is helping counterfeiters and the inevitable damage to brand reputation that will result.

And, last but by no means least, Giulia started her talk focusing on the impact that COVID-19 has had on fashion brands trading online. Looking at brands’ commercial relationships involved in e-commerce transactions, Giulia provided key insights on possible applications of force majeure and frustration claims and highlighted the key challenges for brands wishing to vary or terminate contracts with their business partners . Furthermore, Giulia expressed the ways in which a brand may ‘future-proof’ for future pandemic events.

Giulia also explained the main aspects of online wholesale, consignment and marketplace agreements, and how these online distribution modes could evolve following the impact that COVID-19 has had on consumers’ demand. Giulia then moved on to consider the recent success of livestream e-commerce in China and the regulatory and commercial issues that brands could face should it been introduced in Europe and the United Kingdom. Giulia finished off her session with insights into the data protection framework governing electronic mail marketing, describing how brands should comply with statutory requirements as well as highlighting certain exceptions to the ‘consent rule’.

Like previous sessions offered by the Fashion Law London team, the lectures were truly valuable to anyone with an interest in the fashion sector. Even when taking their teaching online, the engaging aspect of the discussions were not lost, and the content covered remained varied and captivating.