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How Fashion Law Is Fighting Counterfeits Today

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By Casey C. Sullivan, Esq. on March 02, 2016 9:58 AM

What's the best attire for court? (Suit or pants suit.) Can you ever wear too much black? (Not really.) Bow tie or regular tie? (Regular tie, of course.)

These are important fashion questions, but they're certainly not what fashion lawyers wonder about. The few, lucky attorneys in the fashion industry are much more likely to be worrying about counterfeit goods than how best to accessorize. And with the rise of Internet shopping and ecommerce, the fight against counterfeits has taken on a new shape.

From Back Alleys to Ecommerce

Once upon a time, if you wanted some fake designer fashion, you'd have to buy it out of the back of some guy's car. Today, globalization, the Internet, and counterfeiting have collided, making it easy to get a fake product with just the click of a button.

That raises unique challenges to protecting fashion and luxury brands. When selling counterfeits was once a brick and mortar endeavor, enterprising attorneys learned they could go after landlords in order to shut down the trade.

Innovative Litigation

Today, some new ingenuity is needed -- and many attorneys are looking towards litigation by The North Face and Polo Ralph Lauren for that inspiration. In 2010, those brands brought suit in federal court against thousands of oversees websites retailing in counterfeits. They sought ex parte restraints on assets and an order requiring third party cooperation. They were even able to convince the court to allow service by email.

The strategy worked, with Judge Hellerstein of the Southern District of New York ruling that "in an Internet age, the Internet cannot be allowed to be a lawless method of evading court orders."

Such litigation strategies have become some of the most effective tools in fighting online counterfeiting.

Not Everything Is So Simple

Of course, many challenges remain. Litigation against foreign banks, in order to make them accountable for their role in infringing sales, hasn't yet been a success. (Though litigation against the Bank of China is ongoing.)

Some voluntary, third-party solutions have been forged. The commerce website eBay now has a Verified Rights Owner Program that allows verified owners to shut down auctions of counterfeit goods. That can be a double edged sword, however. Companies that don't participate can see themselves shut out of court later on.

Of course, these are just some of the legal strategies evolving as fashion and digital commerce interact. For more fashion law developments, check out Navigating Fashion Law, by Thomson Reuters' Aspatore. (Disclosure: Aspatore is one of FindLaw's sister companies.) Part of the "Inside the Minds" series, this book brings together top fashion law practitioners to discuss protecting brands and industry trends, covering everything from counterfeits and ecommerce to social media endorsements and global professional networks.

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