How Social Media Is Making It Trickier to Protect Fashion & Footwear Designs

The already complicated task of protecting and defending intellectual property, such as trademarked or copyrighted designs, has become increasingly difficult in the age of social media.

For one thing, accusations can be lobbed online — sometimes without legal basis — and impact public opinion. And disputes between firms can become highly public on Instagram or Facebook.

At a panel discussion at FN Platform on Feb. 12, Amber Mullenix, director of licensing for apparel firm Jerry Leigh, recalled a time when her company was accused of infringement via a social media post. “It was not a valid claim, because of the amount of time that had passed. This was an old product they were referencing,” she said. But because of the public nature of the complaint, it had to be addressed — and carefully.

Mullenix recommended that if your firm receives a cease-and-desist letter or complaint, it’s important to first consider its source and then accumulate as much information as possible about the product design before taking action. “When it comes to responding [to any complaints], the best course of action is to consult with counsel,” she said.

The same amount of care should also be taken if your company is the one being infringed upon.

Deborah Greaves, a partner at the law firm Brutzkus Gubner Rozansky Seror Weber LLP, cautioned that with the rise of social media, any communication between companies, such as a cease-and-desist letter, can end up posted online.

“When you’re crafting these letters, you might want to consider your tone,” she said. “If it’s a small issue or a first-time offender, you don’t have to go out guns blazing. We’ve even seen some sort of funny cease-and-desist letters, and when those have been posted online, they had a positive reaction.”

The best defense in protecting a firm’s intellectual assets, however, is preparation.

“You need to set up processes to do early design reviews and then a second look,” said Leah Evert-Burks, a former Deckers executive and now industry fellow at Michigan State University’s Center for Anti-Counterfeiting and Product Protection. “It’s important to look at all the features of the products and determine the best way to protect them.”

She added that talking with the design stakeholders is key, but the marketing and sales teams should also be part of the conversation. “You need to know what global territories they’re targeting so you can make sure you’re covered there,” said Evert-Burks.

The panel discussion was organized by the American Apparel & Footwear Association.

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