Q&A: fashion law in review

Foley & Lardner partner Laura Ganoza reviews 2023 and previews the top 2024 cases, deals and trends

On 30 January, the Luxury Law Alliance is partnering with Foley & Lardner’s fashion, apparel and beauty industry team to present Fashion Law 2023 Year in Review. This one-hour webinar (CLE is available) features Foley’s luxury experts Laura Ganoza, Emily Ostreich and Jessica Walker who will review 2023 developments and discuss how they are affecting sector players and driving trends in 2024.

The programme is complimentary and registration is available here.

In advance of the programme, Anne Gallagher spoke with Laura Ganoza about cases, trends and personal fashion styles.

Laura, when you look back at 2023, is there a particular case, deal or issue that all eyes are on?  

The Hermès MetaBirkins trial had significant impact, especially when followed by the Jack Daniels and Andy Warhol Supreme Court decisions. Combined they speak to the limits of commentary and expression of existing works. Since fashion is all about interpretations or evolutions of past ideas, these cases will continue to impact the industry. 

ESG and sustainability in particular continues to be a hot issue in fashion. Can true fashion ever be sustainable?  

Many companies are betting on sustainability being a key component of their strategy and, eventually, their identity. For fashion to be completely sustainable, there will need to be a tremendous amount of creativity and changing default assumptions and practices about how fashion is made and sold, and just as importantly, recycled and resold. 

We read a great deal about the growing importance of virtual fashion trends yet at the same time, some reports say that luxury brands still believe physical stores are indispensable. Thinking about your clients and the issues they bring to your practice, do you have an opinion about where the market is headed? 

The most successful fashion brands will have both physical and virtual, especially for luxury brands where the exclusivity of going to a store is still an important aspect of the consumer experience. That said, as the demographics of consumers skew younger, more access in the digital realm will be equally important.

2023 has been called the year of generative AI. What are the issues in this area that keep in-house counsel up at night? 

Copyright, trademark and trade dress infringement is a big area of concern, whether a brand is using AI to come up with content (and they may be infringing another’s IP), or a brand’s own IP is being used as the content for teaching the AI platform. Another concern is the ownership of the resulting work product. If AI is used to create something, who owns it? Also, the inherent limitations of whatever is being used to train the AI models – if there is not enough diverse content, will the AI output be inclusive enough to meet broad ranging consumer demands?  

One of the hallmarks of the luxury fashion world is the number of family owned and run brands. What’s the current M&A landscape in fashion and are we likely to see buy-outs of any iconic family brands in 2024?   

As the Alliance reported based on the recent Bain & Co/Altagamma survey, M&A is expected to continue in 2024. Tapestry, Inc.’s plan to acquire Capri and Kering’s acquisition of 30% share of Valentino last year has people talking about large brand acquisitions. But another thing we see on the horizon is acquisitions of smaller brands or companies who are innovative or leaders in a certain area, such as sustainable and innovative fabrics, use of AI, retail operations, and so forth.

This is the sixth year of your Fashion Law in Review programme. What one or two issues, cases or trends stand out to you over this time period?  

The luxury resale market is a topic that has been on our radar since one of the first programmes. The Chanel cases against What Goes Around Comes Around (currently in trial) and against The RealReal (currently stayed). There is a tension between having control of the luxury brand while catering to consumers who want to engage in more sustainable – and economical and aspirational – purchasing decisions. 

What do you read to stay abreast of developments in the fashion industry?  

WWD, Business of Fashion, The Fashion Law, Fashionista, and Vogue Business, to name a few.

Thinking of your own personal style and fashion, do you have a favourite statement piece? 

Since three of us are presenting the Fashion Law in Review programme, let me tell you about all of our statement pieces. For me, nothing beats the perfect black dress which can be used from day to night to work to evening. Emily Ostreich likes a beautiful handbag to pull an outfit together. Jessica Walker likes a statement necklace to make a fashion statement.

Laura Ganoza is a partner and litigation lawyer with Foley & Lardner. She chairs the litigation practice in the firm’s Miami office and is the co-chair of Foley’s fashion, apparel and beauty industry team (Foley FAB). Laura can be reached at [email protected]

Emily Ostreich is an associate in the firm’s Chicago office and a member of the trademark, copyright and advertising practice group and the fashion, apparel and beauty industry team. She can be reached at [email protected]

Jessica N. Walker is an associate in the firm’s Los Angeles office. She is a member of the business litigation and dispute resolution practice. Jessica can be reached at [email protected]

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