What does a fashion lawyer do?

While we may not be considered as among the fashion capitals of the world, law related to fashion is very much flourishing in Canada. And this practice area is much more than just dresses, garments, or clothes.

In this article, we’ll discuss the basics of what a fashion lawyer does, which industry they work in, and what Canadian laws they’re experts of.

What is a fashion lawyer’s job?

A fashion lawyer is someone who directly works for a company engaged in the fashion industry. They can also be someone whose expertise is with a different legal practice area, but still works for a fashion company. As such, a fashion lawyer deals with a wide range of legal issues during their career.

The role of a fashion lawyer may include:

• working as in-house counsel or in a legal department of a company engaged in the fashion industry
• protecting and enforcing the intellectual property (IP) rights of their clients (i.e., their patents, industrial designs, trademarks, and trade secrets)
• litigating legal matters faced by fashion companies (e.g., IP infringement cases, or breaches of contract) or defending them when they’re the ones being sued
• interpret laws (whether local and international, federal or provincial) for licensing and compliance purposes
• drafting, negotiating, and enforcing contracts entered by the client when conducting its business

Clients of fashion lawyers

But when we say fashion companies as potential clients of fashion lawyers, we just don’t talk about the big brand names that we usually know of. The clientele of fashion lawyers also includes companies involved in clothing production and in retail.  From the conceptualization of garments, down to when these reach the racks of a local store, a fashion lawyer can be involved in these processes.

Aside from those luxury fashion houses and design companies that we normally think of, here are some other examples of clients or employers of fashion lawyers:

• distributors
• manufacturers
• retailers
• marketing agencies

It also ranges from small businesses to large enterprises, whether it be operating online or otherwise.

Check out this video from the Osgoode Fashion Law Society (OFLS) where fashion lawyers talk about their job, the industry they’re in, and what it takes to be one:

For more videos of lawyers talking about their roles and their legal practice areas, head over and bookmark our Multimedia page.

The role of a fashion lawyer

Aside from what was discussed in the video above, there are many ways to brand yourself as a fashion lawyer. There two things that you can focus on:

1. learn the Canadian laws that are relevant to the fashion industry and businesses engaged in production, marketing, and merchandising of clothes
2. learn how these businesses operate, including their practices, to acquire industry-specific knowledge

Becoming a fashion lawyer means building experience and expertise in different legal practice areas.

How to become a fashion lawyer

If you’re set to become a fashion lawyer someday, having the background to help you in this business is important. Even while you’re studying in law school, there are many ways to align yourself in the industry, such as:

• joining law organizations in your school that are focused on fashion law (e.g., University of Toronto has the Fashion Law Society)
• finding summer jobs at a law firm or for a lawyer whose practice area include fashion law, IP law, and corporate law

When you’re admitted to the bar, you can further enhance your expertise on fashion law by enrolling in post-graduate studies. These may not necessarily be on fashion law per se, but can be in related legal fields, such as IP and corporate law.

How does fashion law work in Canada?

Fashion law is not entirely separate from other legal fields, but is even a combination of corporate law, IP law, among others. It can also be viewed from the perspective of applying these different laws to an entity that operates in the world of fashion.

Intellectual property rights

The fashion industry is built on the foundation of IP rights — from tradenames (i.e., a company’s brand) to patented works (i.e., a company’s own designs). A mere slip of one’s IP into the hands of another may cost a lot for these clients. As such, fashion lawyers are called to protect these IP rights and to enforce them whenever necessary.

Protecting the brand, styles, and designs

Companies with protected IP rights are not immune to trademark infringement cases among fashion retailers, especially with the modern trend of fast fashion. Protecting their clients’ IPs can be the core of a fashion lawyer’s job, which may involve:

• registering patents, industrial designs, and trademarks with the Canadian Intellectual Property Office (CIPO)
• starting legal proceedings against infringers, which can be civil action for injunction and damages, and/or criminal action

For instance, with the help of a fashion lawyer, injunctive relief can be sought when there’s a case of trademark infringement. This is helpful for the protection of trademark owners, especially when infringement cases may take years to resolve.

On the other hand, a fashion lawyer can also advise emerging businesses, such as a new boutique or clothing line, on complying with these IP laws. Using the resources available from the CIPO, they can do IP research as they’re doing their branding strategy prior to registering their own trademark and designs.

This registration or filing of a case may also cross international borders, and fashion lawyers are expected to support companies across jurisdictions. For example, a Canadian fashion company can register its trademark with the World Intellectual Property Organization (WIPO) if it wishes to do so. It may also pursue a civil or criminal case against a foreign entity which violated any of its IP rights.

Here’s a summary of how IP law works in the fashion industry, citing cases in the US involving some big-name fashion brands:

More resources on Canadian case law on IP rights can also be found on our Intellectual Property page.

Data protection and privacy matters

As commercial transactions are becoming cashless, and with the birth of online shopping, there is a growing concern over consumer data protection and privacy. Since this does not spare the fashion world from also adapting to these innovations, companies bring in legal experts to help them with these concerns.

One of the important Canadian laws when it comes to data protection is the Personal Information Protection and Electronic Documents Act (PIPEDA). Fashion companies may be covered by this law, such as when they collect personal information in the ordinary course of their business. A fashion lawyer may also have to direct companies on how to comply with PIPEDA and other data privacy laws of Canada.

Corporate law in the fashion industry

Fashion law is corporate law that just happens to be in the fashion industry. Those who dream of becoming a fashion lawyer may have to familiarize themselves with Canadian corporate law.

All about contracts

Part of the corporate role of fashion lawyers is creating and negotiating contracts on behalf of their clients. Business transactions of companies engaged in this industry do not escape the clutches of contracts. These contracts may pertain to the production, marketing, or the selling of the company’s products.

Usually, the fashion industry uses industry-specific contracts (as with any other area of law), or similar contracts but contain terms that are unique for this industry, such as:

Not only do fashion lawyers have to be experts in drafting these contracts, but they also must be experts in negotiating with other parties to get the best deals for their clients.

 When things go south, enforcing the client’s rights under the contract may also be part of a fashion lawyer’s job. They can do alternative dispute resolution or ask for the intervention of the court as a last resort.

Franchise agreements with fashion labels

One way to respect an IP owner’s rights while reaping the benefits of aligning with established high-end brands is to enter a franchising agreement with them. A fashion lawyer may help in the negotiations of this agreement, while keeping in mind other necessities that come along with it (e.g., disclosures required by Canadian laws).

Labour and employment

One of the hot topics nowadays in the fashion industry is its impact on labour and employment. In keeping up with the fast-paced world of clothing production, there are times when employment issues are overlooked by companies and businesses. With this, fashion lawyers, or those who work as a fashion company’s in-house counsel, may cross over into labour and employment laws.

Employment contracts

In addition to the above-mentioned agreements, fashion lawyers can also negotiate and draft employment contracts for their clients. These employment contracts can also be fashioned to protect their clients' IP rights during, and even beyond, the employment period. These provisions are usually included in an employment contract (which may also work as a stand-alone contract):

• non-compete clause
• non-disclosure agreement
• confidentiality agreement

In the case of trade secrets, which have no formal registration regime under Canadian IP laws, enforcing one’s IP rights is very contractual in nature. Crafting contracts that address these issues are important, and a fashion lawyer can be helpful in this matter.

Competition law

Fashion lawyers can also advise their clients — especially those who are engaged in the marketing and advertising of products — on the complexities of competition law. They can guide clients on what the federal Competition Act says about fair competition and its listed offences, such as deceptive marketing practices. The Act also covers mergers and acquisitions (M&A) among companies and businesses in the fashion industry.

Regulation of influencer marketing

An example of where deceptive marketing practices may occur is when companies engage the services of influencers. The Competition Bureau warns businesses that when they engage in influencer marketing, influencers must be transparent about the products and services they’re promoting. They must also disclose any material connections with the promoted business, product, or service, such as:

• payment or commissions
• free products or services
• a personal or family relationship
• discounts, free trips, or tickets to events

To comply with these guidelines, marketing companies and influencers may seek the help of fashion lawyers. This is not just to prevent any brushes with the law that may affect consumers’ loyalty to the brand, but also to avoid heavy penalties against these businesses and influencers.

M&As of fashion retailers

Doing business in the fashion retail sector is not always seamless. Companies and boutiques may go bankrupt or enter an M&A with another to adjust to the fast-paced world of fashion and retail.

To aid them in these processes, fashion lawyers can be these businesses’ go-to, relying on their knowledge of Canadian corporate and M&A laws. A large basis for compliance with M&A laws is still the Competition Act, which requires the filing of notifications with the Bureau if certain thresholds are reached.

One example of an M&A transaction in the retail business is the 2013 acquisition of Saks Incorporated by Hudson's Bay Company (HBC) in the amount of US$2.9 billion. This expanded the market reach of HBC, both in the US and in Canada.

Lawyers with a fashionable job

Aside from keeping up with the trends in the garment industry, fashion lawyers do a lot of multi-faceted work for their clients. This reaches out to the different areas of law, such as corporate law, labour and employment law, competition law, and many more.

Those who aspire to become a fashion lawyer must be ready to wear many hats for the different roles they’re going to be taking on. This makes working as a fashion lawyer, well, fashionable.

Looking for fashion lawyers who also work in IP law? Check out our Special Report on the Top Intellectual Property Law Boutiques.