Sustainability is the buzzword in the fashion industry, with luxury brands realising that choosing to go green is more than just a colour. “Buy less, choose well, make it last,” was the motto of the fashion designer Dame Vivienne Westwood, who died last week in London, aged 81.
Westwood, who made her name with the punk and new wave styles in the 1970s and went on to dress some of the biggest stars, was also an activist.
Among other causes, she was a vocal backer of the WikiLeaks founder Julian Assange, who is fighting extradition to the US on charges relating to the publication of classified documents.
Back to the catwalk — fashion, said Safir Anand, a senior trademarks partner at the Indian law firm Anand & Anand, was one of the most polluting industries. According to the UN environment programme, it accounts for 8 to 10 per cent of global carbon emissions and 20 per cent of wastewater.
An obsession with trends and fast fashion means that more goods are produced than people need, with tonnes being destroyed unsold or dumped in landfills in developing countries. Some consumers are taking an interest in the methods and environmental cost of producing the shirt on their back.
Advertisement
“The growth in demand for sustainable products continues to drive environmental claims by luxury brands,” Sally Britton, a partner at Mishcon de Reya, said. She added that a lack of industry-wide standards had left brand owners open to suggestions of “greenwashing” by sceptical consumers, and big names were looking to create recognised standards and join programmes that certified commitments to sustainability.
Jack Cooper, a commercial litigation specialist at Addleshaw Goddard, said that fashion houses and brands were being subjected to a heightened level of scrutiny from consumers and governmental regulation over their sustainability statements.
When done right, Cooper said, statements in relation to where a piece was made and how it was sourced and marketed could work to a brand’s advantage, allowing it to expand its appeal in defiance of the economic gloom. He cautioned, however, that “any representations must be credible and have a solid foundation within business practice and compliance with the regulatory framework”.
Fashion might give the appearance of being focused on beauty, glamour and style, but behind the scenes, models, designers, manufacturers and others involved in the retail and marketing process contend with much that is ugly — from sexual harassment, illegal copying and the sale of knock-off goods, and allegations of child labour and exploitation.
Britton said that the sale of counterfeit goods online remained a problem. She pointed, however, to a recent landmark judgment for Christian Louboutin, famous for his signature red-lacquered shoe soles.
Advertisement
In December, the EU’s Court of Justice ruled that, owing to the way in which products were presented on its platform, Amazon can be held liable for the offering for sale of counterfeits that the company distributes itself, as well as for the counterfeits sold by third parties on its site.
Stephen Sidkin, a partner at Fox Williams, said that one of the most serious difficulties for suppliers, brands and retailers was simply survival, the combined effects of Brexit, the aftermath of the coronavirus pandemic and the war in Ukraine. “For various reasons in recent weeks Joules, Frugi and Atterley.com have had insolvency experiences,” Sidkin said. He added that 2023 did not show signs of being any different.
Jason Rawkins, a partner at Taylor Wessing, said that geopolitical issues were creating significant problems for high-end fashion brands. “Export bans are preventing sales of luxury goods into Russia,” he said, adding that the “important China market is seriously impacted both within China because of Covid restrictions, and outside with radically reduced numbers of wealthy Chinese shopping in UK and European stores”.
However, lawyers said that one common topic was keeping fashion company chief executives awake: the metaverse — a virtual reality world that companies spent millions of pounds investing in over the past year.
Britton said that the metaverse would provide fashion brands with revenue, advertising opportunities and the means to connect with more consumers. Nike, Balenciaga, Gucci and Burberry are among household names to have collaborated with platforms, including Roblox, Fortnite and Minecraft.
Advertisement
This phenomenon is likely to lead to more work for lawyers because, Rawkins noted, “complex new legal issues are rife in the unregulated virtual world, from how to prevent fake products to what metaverse domain names to register”.
In the US, Hermès is suing the digital artist Mason Rothschild for trademark infringement over his sales of “MetaBirkin” non-fungible tokens, which depict the luxury retailer’s Birkin handbag.
Other issues include “cultural appropriation or misappropriation”, where, Anand said, designers took elements from another culture and exploited them.
Anand said that an understanding of culture should precede commercial use, and she advised that “consent, compensation and credit go a long way in cultural appreciation”.
Collaborations with online influencers and celebrities can also cause headaches, sometimes irrevocably damaging brand reputations that have been built over decades, Britton said. Governments are increasingly publishing guidelines demanding that influencers disclose any financial arrangements or sponsorships to avoid misleading the public.
Advertisement
Britton said: “Due diligence into partners and suppliers with appropriate contractual provisions that allow you to terminate and secure the removal of content are essential.”
