Christina Binkley writes for the Wall Street Journal:

Towering brands like Gucci and Louis Vuitton may dominate ad pages and storefronts, but small designers are gaining a bigger foothold in fashion.

What Sundance did for indie film—showcasing it for a bigger audience—Web sites like Etsy are doing for the little guys of design.

from Smashingdarling.com

She explains how technology is helping the little guy (gal) rise at the same time the giants slide:

At the same time, consumers are increasingly hungry for independent designs. In part, brand fatigue is to blame. Big fashion labels sell the same products the world over, diminishing their logos’ cachet.

Ah yes, brand fatigue. The corporate conglomerates bought out something with actual heritage and promptly proceeded to kill the goose that laid the golden egg.

Their designers work on collections a year or more in advance of the clothes’ appearance in stores and rarely—if ever—meet the people who eventually buy them. Moreover, many consumers lost faith in luxury brands after watching prices soar during the boom, then plummet during the crash in the fall of 2008. The slashed sales prices raised questions about the true value of branded goods.

Ah yes, that pesky 08 crash that caught high end retailers with their designer pants down. Kind of hard to regain that snooty image after that season of bargain bin desperation.

Indie designers offer pieces that not everyone has, allowing consumers to create their own style. I’ve noticed that the clothes and jewelry of mine that garner the most compliments are those that come from indie designers. They’re not the same old trendy looks.

’same old trendy looks?’ Talk about inverting status.

Plus it doesn’t hurt your reputation for shopping savvy to admit that you bought something from a young, up-and-coming designer. These days, the “buy local” movement has whetted shoppers’ appetite for a greater sense of connection with their goods’ creators.

Now, even the huge brands are striving to establish authenticity—sometimes trying a bit too hard. British authorities recently banned Louis Vuitton ads that showed an artisan laboring on a bag, saying the ads suggested, falsely, that its bags are handmade.

And how many more potential LV customers saw the blogosphere light up with that juicy story rather than the bullshit ad they wanted them to see? How many of those customers are instead connecting with the actual artisan of the ’statement jewelry’ they’re investing in?

Trish Ginter, co-founder of SmashingDarling, which sells products from nearly 700 indie designers, identifies the site’s typical shopper as “a very professional woman,” she says. “They’re purchasing things that set them apart.”

Denise Dorrance comic

In America we tend to hold on tightly to this myth of a ‘classless society.’ Talk of status and reaching for it is taboo; rarely will an individual list ’signaling status to others’ as motivation for purchasing a luxury good (yeah sure, it’s allll about the quality…). British epidemiologist Richard Wilkinson isn’t afraid to broach the class issue, and explains the fashion/status connection pretty clearly in his interview with Brooke Jarvis:

Louis Vuitton, classic status symbol

Status competition causes problems all the way up; we’re all very sensitive to how we’re judged. Think about Robert Frank’s books Luxury Fever or Falling Behind, or the great French sociologist Bourdieu—they show how much of consumption is about status competition. People spend thousands of pounds on a handbag with the right labels to make statements about themselves. In more unequal countries, people are more likely to get into debt. They save less of their income and spend more. They work much longer hours—the most unequal countries work perhaps nine weeks longer in a year.

If you grow up in an unequal society, your actual experience of human relationships is different. Your idea of human nature changes. If you grow up in a consumerist society, you think of human beings as self-interested. In fact, consumerism is so powerful because we’re so highly social. It’s not that we actually have an overwhelming desire to accumulate property, it’s that we’re concerned with how we’re seen all the time. So actually, we’re misunderstanding consumerism. It’s not material self-interest, it’s that we’re so sensitive. We experience ourselves through each other’s eyes—and that’s the reason for the labels and the clothes and the cars.

“We experience ourselves through each other’s eyes.” We are conscious about how others perceive us, especially strangers who have no other point of reference other than our outward appearance.

This is about the psychosocial effects of inequality—the impact of living with anxiety about our feelings of superiority or inferiority. It’s not the inferior housing that gives you heart disease, it’s the stress, the hopelessness, the anxiety, the depression you feel around that. The psychosocial effects of inequality affect the quality of human relationships. Because we are social beings, it’s the social environment and social relationships that are the most important stressors.

When Simon Doonan, Creative Director of Barney’s, (one of the handful places where fashion forward designers have access to the rare slice of edgy yet wealthy clientele that can afford their pieces), the extremely influential guy who the rest of the fashion industry knows to pay attention to… when Simon Doonan declares The Death of Trends then it’s a zeitgeist shift worth pondering. There are still going to be shapes and norms that we collectively select (whether you follow them or rebel against them) but I see this as more of a backlash against the accelerated cycle of the spending on disposable clothing hamster wheel and a coalescing around an iconic vocabulary of modernist elements; classics that are tweaked and revised with the times.

photo by Roxanna Lowit for the Jewish Daily Forward

Doonan writes for the Observer:

Fashion is no longer icy and aloof. Fashion is a massive, forgiving, ambiguous melting pot where people and trends can dig in their Lee Press-On nails and hang on for years and years without ever being out.

He goes on to list a few examples:

Uggs. Style pundits may have broadcast their out-ness for years, but last week’s snowy streets were packed with Uggs-sporting fashion plates.

There is a delicious personal irony in this example given that back in 2004 Uggs were cited in a lengthy discussion in Fashion Theory class as an example of trendy for trendy’s sake. Even though this trend might have been initiated by celebrity sitings, (so awesome to slip on between takes on outdoor shoots) could it be that they’ve had staying power because those who bought them discovered they were super comfortable and well made and lasted forever?

Skinny jeans. Despite their supposed out-ness, they have managed to become a fashion staple, especially when tucked into riding boots. Tally ho!

Key term, “Fashion Staple.” So they became ‘in’ a few years ago as the bootcut finally reached mass market saturation, but could it be that one fashion staple was traded in for another? Could it be that people want fashion staples?

Filson clothing, used as an example of 'American Workwear' trend on brand consultancy blog "We Are The Market"

Of course, now that the skinny jean is headed for eventual  mass market saturation, it will eventually go the way of the mom jean (which has been ‘out’ almost long enough to be revived…), so it’s not as if the trend cycle is no longer. But given that ‘fast fashion’ retailing cycles had accelerated to the point of new trends every six weeks, could it be that more and more consumers are weary of this and seeking alternatives?

These alternatives - especially to spending too much - have been found for the past few decades in the ‘indie’ and ‘alternative’ subcultures continued fascination with vintage. As these ‘trends’ arise in the vintage industry about which items are hot and eagerly sought after, it was a natural progression for designers to use said items as inspiration for re-issues.

'Lily et Cie' interior from coolspotters.com

Cintra Wilson’s description of the icy snobbery at Lily et Cie in Beverly Hills, is yet another indicator of how vintage clothing continues to increase in value and status while serving as an iconic vocabulary of 20th century sartorial elements to be continually referenced and recombined by modern designers. The inaccessibility to the masses - in both attitude and price - supports the notion of a new definition of luxury for the 21st century:

As luxury seeks to redefine itself in the wake of the conglomerate takeover pandemic, there is, in certain (rich) circles, an increased demand for swanky vintage couture, the rarity of which essentially guarantees that when you sashay down the red carpet, there is no way in tarnation you will be wearing the same dress as Kim Kardashian.

…Even for a Teflon robo-cobra like me who has spent enough time in high-end establishments to have retail nerves like bridge cables, it’s a little hard to breathe in this joint.

It struck me, after my escape, why Lily et Cie has a half-million pieces: Ms. Watnick isn’t selling her formidable collection so much as hoarding it. One senses that she looks upon this mountain of untouchable fashion as her children and is loath to see any of them go.

Following up an earlier post…

Trendy retailers might be hastily hiding their garbage, but disgruntled former employees continue to expose them to the public relations nightmare as the habit of destroying clearance merchandise rather than mark it down too far or donate it to a ‘less than aspirational’ clientele lights up the blogosphere. Jezebel.com cuts right to the chase about the interface between hyperconsumerism and our current fashion system:

But what the problems boil down to is this: for a very long time, the retail economy in the first world has been flooded with product. Inventory was allowed to outstrip demand, because margins were so high that waste became tolerable. (Consumption was rising anyway, because of easy credit and planned obsolescence.) This is true both of disposable clothing chains whose business model counts on an endless cycle of new stuff, and high-end stores whose end-of-season 60% off “sales” don’t even start to bite into wholesale, anyway. In a worthless economy like that, where products that are understood both by their sellers and their buyers to be fundamentally without value are moved around the world to make some already rich men even richer, epic levels of waste are not even an unintended consequence. They’re a design feature.

And over at Alternet, Liliana Segura features interviews with former Anthropologie employees describing the practice:

I was on stock and we were clearing out a bunch of sale items that hadn’t sold. I asked the manager what I should do with the clothing and she said “destroy it.” Destroy it? I asked. Shouldn’t we donate it? ‘No,’ the manager replied, ‘we are only allowed to donate certain items. Corporate policy is to destroy everything else.’

I didn’t have a choice so I did it. Perfectly good shirts, sweaters and pants got ripped, torn and generally wrecked. It was really depressing! Another associate told me they destroy furniture too — almost everything that doesn’t sell. We couldn’t figure out why. Later on another manager told me that Anthro does it to maintain their brand integrity. They don’t want their brands at discount stores or anywhere that would cheapen the brand. Nothing is too common and they want to keep it that way.

NY Times reporter Jim Dwyer who first exposed the story continues to follow the trail with a story profiling an organization set up to provide retailers a systematic way to donate leftovers to the needy. Those who run the clothing bank offer a lot of insight into their suppliers, in particular the role that our familiar friend, aspiration, plays in the fashion retail game:

The reasons are complex. No business wants to compete with its own garbage, or risk having people show up at a store seeking refunds on clothes that were never sold. “That’s why many retailers will damage unsold garments,” said Luis Jimenez, the director of the Clothing Bank, which is now operated for the city by Peter Young Housing, Industries and Treatment.

Some businesses do not want their goods worn by poor people. Ed Foy, the founder of eFashionSolutions.com, said that brands invest billions of dollars in their images, using models and athletes, which makes them cautious about where donated leftovers might end up. “They want us to see that the people wearing their brands are the people we aspire to be,” said Mr. Foy, a board member of the Clothing Bank. “They want to know, ‘Who’s wearing the clothing and how can that hurt my brand?’ ”

From the outset, the Clothing Bank tried to address the business concerns, Mr. Jimenez said. The warehouse is secure, lowering the chances that the donated clothes would be stolen and resold; only not-for-profit groups receive the distributions, so that, for example, no individual can collect a pallet full of Dress Barn merchandise. Donations are tax-deductible. If a donor wants labels removed, they are cut out by volunteers, including inmates on work release from the Lincoln Correctional Facility in Harlem.

But even that isn’t enough for many brand managers, the luxury ones in particular. Dwyer continues his coverage:

New York City officials destroyed tons of new, unworn clothing and footwear last year that had been seized in raids on counterfeit label operations, abandoning a practice of giving knockoff garments to groups that help the needy.

…

A spokesman for the Police Department said that no one asked for the knockoffs in 2009 — an explanation that was bewildering to the operators of the clothing bank, who run a warehouse that supplies clothing to needy New Yorkers. They said they had made many requests.

“It would be hard to justify taking a truckload of perfectly good clothes and incinerating them, but that’s what’s happening,” said William Montana, a commercial real estate adviser who is on the board of the clothing bank. “The people who had control over giving us that stuff had been really good to us. Now the pipeline has dried up.

…
Many major fashion brands have their headquarters in New York City, and Mr. Bloomberg has made prosecution of trademark infringement a priority for his administration. The companies also take actions in civil court against the pirates, an expensive process, to protect the designers’ names.

“These are people who spend hundreds of thousands of dollars, some of them millions, to get counterfeit goods off the street,” said Robert Tucker, a lawyer with the firm of Tucker and Lafiti, whose fashion clients include Chrome Hearts, Steve Madden, Zac Posen and Ed Hardy. “Everyone wants to feed and clothe the homeless. But how are you going to spend all this money and then put it back on the street?”

From the outset, the Clothing Bank tried to address the business concerns, Mr. Jimenez said. The warehouse is secure, lowering the chances that the donated clothes would be stolen and resold; only not-for-profit groups receive the distributions, so that, for example, no individual can collect a pallet full of Dress Barn merchandise. Donations are tax-deductible. If a donor wants labels removed, they are cut out by volunteers, including inmates on work release from the Lincoln Correctional Facility in Harlem.

from Hypebeast.com: Comme des Garcons launch at Tokyo H & M

Why would trendy fashion for the masses palace H & M deliberately ruin mountains of brand new, perfectly wearable garments rather than mark them down or give them to people who really needed them? Jim Dwyer of the NY Times reports:

At the back entrance on 35th Street, awaiting trash haulers, were bags of garments that appear to have never been worn. And to make sure that they never would be worn or sold, someone had slashed most of them with box cutters or razors, a familiar sight outside H & M’s back door.

The Guardian UK picked up the story, too:

Inside the bags were gloves with the fingers cut off, socks, patent leather shoes with the instep cut up, and warm men’s jackets slashed across the body and arms. “It was a very frigid night, and there were bags upon bags of warm winter clothing not 50 feet away from where a homeless man slept on cardboard boxes,” she said.

…Paradoxically, five blocks away from the H&M store is a group called New York Cares, which mobilises support for the community by co-ordinating volunteers wanting to help homeless and poor families in the city. It holds an annual drive that distributes 70,000 secondhand winter coats to needy individuals.

The group points out that nine in 10 homeless adults need to replace their winter coat each year because they have no place to store it during the summer.

But neither article dares to venture near the ugly underlying truth that the reason H & M doesn’t give those coats to the people right outside who need them - or even mark them down to a level affordable by the working poor - is because those aren’t the people it wants its look to be associated with!

It’s a class thing. While H & M is talked about in fashion circles as cheap, disposable clothing, the fact remains that $25 tee shirts and $69.90 jackets are what the middle - or even upper middle - class can afford. Heck, I don’t even consider it something I can afford full price!

But this middle class will pay $49.90 for a really low quality pair of pants… that look a whole lot like elite contemporary fashion brands that cost 3 - 20 times as much. H & M offers the middle class a chance to participate in the fantasy of the designer fashion lifestyle and how do you think that customer is going to react when she sees the blouse she paid $39.90 for 6 weeks later on the streetperson she passes or the clerk selling her a sandwich?

And believe me that H & M isn’t the only hype dependent retailer doing this. A friend used to manage at Abercrombie and Fitch several years back and she said they, too, destroyed clothing rather than mark it down to where it could fall into the wrong hands.

Why wouldn’t a retailer want to at least recover 25% of the retail price rather than toss it? Because they don’t want to train customers to wait for the sales. The whole system is based on urgency and scarcity - better buy that hot item now before its gone. The belief that (insert latest fly by night trend here) is the thing to have would be challenged by customers pawing through the 75% off remains of last month’s ‘it’ trend and deeming it just as useful to them and a much better buy.

H & M might have gotten busted and I’m sure their current ‘no comment’ is buying time whilst the PR team scrambles to do damage control and come up with some corporate responsibility drek and token donation to a needy cause. But rest assured, the toss and destroy practice will continue, this time under tighter wraps.

At the Buffalo Exchange buying counter (image pulled from exploringberkeley.wordpress.com)

I dug up a fantastic article by Reyhan Harmanci for the San Francisco Chronicle, Rag Trade: Cashing in on Vintage, or Just Old, Clothes. The article is written in 2005, but from what I’ve observed personally, here in Austin, the practice of professional pickers selling to BX (Buffalo Exchange) has only grown:

The opportunity to convert used clothing into cash has created a new job: professional seller. Known as “pickers,” professional sellers can be a blessing or a curse to a store, depending on their approach to their line of work and the store’s reliance on their goods. The push and pull at the buy counter between the buyer and seller can be contentious; at its best, it’s a symbiotic relationship, based on a singular love of fashion.

At its worst, it’s a parasitic situation, in which the picker leeches off the store, preying on inexperienced buyers or dealing in stolen merchandise. Buyers, too, can sour the deal by rejecting good clothing to spite the seller or copping an attitude that, as Mascola says, “makes you feel like you’re going to see your social worker.”

Again with the judgement/shame issue I’m mentioned in other BX posts. But where do these professional sellers find enough clothes worthy to pass the knowing eyes of the buyers… and still turn a profit?

Through a friend, he heard that the place to go to was As Is, a nickname for the giant Goodwill on Van Ness and Market streets that wheels out bins of newly donated clothing every morning. “I started to get clued in, looking around at what was current, started reading fashion magazines for inspiration.

“Now I treat it like an art form,” he says, without a smile. Although Mascola has sold clothing at least once a week for six years, it’s never been a full-time job. “The profit margin is too thin; it would be too hard,” he says. “It’s more like a hobby.” He does allow that selling clothes beefs up his income from his retail job in the Castro.

from textile_fetish photostream on flickr

The Austin version of the ‘As Is’ in San Francisco? The Blue Hangar. There, I’ve said it. The secret is out in the open, and surely I’ve made an enemy or two. And the only reason I’m revealing this juicy little secret (that’s sort of out and about with the insiders, anyways) is because my day job prevents me from regular digs and pays me enough to just go buy the stuff for a higher price all pre-picked and sized at BX anyways.

The Blue Hangar on Springdale is supposedly where the clothes that have been sitting unsold on the racks for over three weeks at the regular Goodwills go to be tossed in piles on giant tables and sold for $1.25 a piece. They clear the tables and replace with fresh stock once, sometimes twice, a day and at that point the still unsold goods are compacted into bales and sold as such, often to third world countries. But a few years ago on one particularly stellar run, I quizzed the employee checking me out about the sources and she told me that often when the Goodwill stores were full and they were getting more donations than the stores could process, they’ll send the overflow straight to the Blue Hanger, unsorted. Ah ha! I knew the things that I found wouldn’t have lasted three weeks in the Goodwill store. So folks, right at the end of the month when everyone is moving and ditching stuff is THE time to hit the Blue Hanger.

I’ve shopped there for years, and during my last unemployment stint I’d go and load up with a combination of items for myself… and items to sell at BX. It’s super tricky, because you really have to know what those buyers want. I was pretty much able to break even and cover my costs of the whole run, but then again I took BX credit not cash. I was still out a wee bit of cash overall, but got to shop at BX basically for the cost of my time. I’d occasionally see BX employees there digging, too, but my costumer friend who’s there all the time has said that recently its intensified. And on a recent BX sell, I got into a conversation with a buyer who told me about a friend who was supporting her live music/drinking habit through selling finds from the Blue Hanger to BX.

Which brings up an accusation I’ve heard many times that BX employees favor their friends, or friends of friends, or ‘cool people’ when buying. (more…)

How did we live before Google? A blog search turned up this fabulous insider post from Indiana Adams of Adored Austin: Indiana worked at Buffalo Exchange (heretofore abbreviated as ‘BX’) as a buyer, so she knows of what she speaks. It’s so good I’m going to block quote most of it:

I’ll admit that selling your clothes to Buffalo Exchange can be a little bit daunting. The worst is when you go in with several trash bags full of clothes and the buyer maybe buys the one thing that you threw in there as a joke and then passes on all your really awesome stuff that you thought for sure they’d offer you a billion dollars for. Then you have to do the walk of shame to your car with your bags still full!

Indiana Adams sports an outfit on her blog, 'Adored Austin'

Kids, you’re not alone in that walk of shame. Remember, this is coming from a buyer.

Believe me, this happens way more often than not, but it’s not because they crazy fashionista behind the counter hates your guts and despises your personal style. If they’re passing on things that you think they should have bought, here’s some reasons why:
1. They may already have a lot of what you’re selling in the store.
2. The store could be really, really full so they’ve been instructed to be incredibly selective until the racks empty up a bit.
3. The items you’re selling may not be in season, yet.

Since I’ve never been afraid to strike up a friendly, non-defensive chat with the buyers du jour, I’ve heard them tell me (and others) much of the same thing. And a little personal observation? Even though it’s not supposed to matter which buyer you get and they do a whole lot of second opinions with each other… it totally matters which buyer you get. The fashion eye is a subjective thing. period.

Before I worked there, it was hard to sell there. For me, my clothes are an extension of who I am. If they didn’t buy my clothes, that means they didn’t like my clothes, and that means that they don’t like the way I dress, and that means they don’t like me, and that means I should just go eat worms and cry in a corner.

Exactly. So well put, Indiana. This is why my friends who’ve felt the sting of the walk of shame can get forever soured. But to their credit, I noticed that a few years ago when I returned to Austin after a few years away at grad school, the buyers were now making a deliberate effort to be nice and kind, even if there was sometimes a bit of strain, kinda like a waitress voice. (I don’t blame them one bit, I’ve been a waitress…)

But after I worked there, I found out that there’s just so much more to it than that. And besides, there’s no reason to be embarrassed if the buyer doesn’t buy your stuff. One time a dude came in with (this is not a joke!) two trash bags full of jock straps and sweat socks. Those are the kind of people who should be embarrassed. I mean, really. What in the world was he doing with so many jock straps? And why in the world did he think I’d be able to resell them at Buffalo Exchange? Um, gross.

Really? Wow. Someone buy those kids and industrial strength mega bottle of Purell, please!

Austin Buffalo Exchange

This will be the first post in a series exploring both the behind the scenes mechanics as well as cultural implications of the buying process at Buffalo Exchange. I’ll also be repeatedly stating, for the record, that if you give me $100 to spend on clothing in one store in Austin, it would be Buffalo Exchange - it’s my favorite place to shop and I always consider it a triumph to trade in as much - or even more - than I spend on merchandise. I have, as such, always harbored a keen fascination for the buying process - both from the perspective of a seller as well as an armchair urban fashion anthropologist.

Today I’m going to highlight some excerpts from a Time Magazine article I dug up from a couple of years ago that articulates the psychology of seller’s anxiety. Anita Hamilton writes in The New Trend of Used Clothes:

Viki Stevenson stands behind the counter, passing fashion judgment.

With the rare exception of those fashionistas who’s entire bag gets bought, anyone who’s ever sold to ‘The Buffy’ knows this feeling. And speak with anyone who’s had their entire bag (or the vast majority of it) rejected and they might just go off on a tirade somewhat similar in tone to telling the story of being rejected at a party by someone you were trying to chat up. People take it personally; I know I have, even though I understand that they have a business imperative to buy what they know will sell. Still, it is a judgement of one’s taste - do you have so many fabulous clothes that the ones you’re tired of still maintain cash value? Or are your cast offs long since out of fashion or even worse, never in style to begin with.

It can provoke all those junior high anxieties of being judged and teased by ‘the cool kids’, even if you supposedly didn’t care what they had to say.

This quickening cycle of fashion lets secondhand stores be pickier than ever. Unlike nonprofits such as Goodwill and the Salvation Army, which accept most donations, the fast-fashion resale shops typically buy only about 5% of the apparel that people bring into the store. It can be a humbling experience for a novice seller, who may find herself leaving the shop with the same bag of castoffs that she walked in with.

Only 5%? I had no idea, I’d love to find out more details on that statistic. Now I don’t feel as bad when they only take about a third of what I bring in.

And it also speaks to the fact that even though recycling is the eco thing to do, most of the clothes hanging on the racks *new* don’t have enough fashion mojo to hold their value and make it through the gatekeepers to have a second life… that someone will pay for. To those who are feeling the sting of rejection, think about this - if Buffalo Exchange took most of what people brought in, it would look a heck of a lot like Goodwill.

The rise of fast fashion, which uses a speeded-up production cycle to rush designer-inspired clothes to moderately priced retailers like Zara and H&M, has breathed new life into secondhand stores like Buffalo Exchange by boosting their supply of barely worn apparel. “H&M is our bread and butter,” says Stevenson, 27, as she flips through a carousel of blouses from H&M, American Apparel, Benetton and the Gap with prices ranging from $7.50 to $14 apiece.

Since more shoppers are loading up on cheap chic every few weeks instead of purchasing a few higher-priced basics once every few months, they’re less sentimental about quickly unloading them to help finance the next round.

But what happens when people stop buying as much fast fashion? I love recycling, don’t get me wrong, but ever since my first thrift forays 2 decades ago I’ve been keenly aware that my opportunities as such - to recycle but still be fashionable - are entirely dependent on others excessive consumerism. As soon as that starts to dip, it’s going to be a lot more competitive - and expensive to find the finds.

(Image from NY Times article cited in this post.) I could see some potential issue with the Karen Kane pocket or the Jones Apparel one, but those are off label mass brands that sell for less than Levis. The Jelessy, Von Dutch and Fossil examples are distinct, and those brands are positioned as more premium than Levis, not imitators trying to cash in on Levis brand equity

The past week has found me deep down the Google blog search rabbit hole weighing perspectives on the proposed Design Piracy Prohibition Act. Almost all who oppose the bill (myself included) voice a concern that the small, independent, struggling, up and coming designers this act purports to protect would in practice find themselves victim to a flurry of frivolous lawsuits in a climate of legal intimidation. Immediately my mind went to a January 2007 article in the NY Times, Levis Turns to Suing its Rivals, as a shining example of the type of activity sure to grow like a cancer on an already challenged industry if this bill were to become law.

So Levi’s is becoming a leader in a new arena: lawsuits. The company, once the undisputed king of denim and now a case study in missed opportunities, has emerged as the most litigious in the apparel industry when it comes to trademark infringement lawsuits, firing off nearly 100 against its competitors since 2001. That’s far more than General Motors, Walt Disney or Nike, according to an analysis by research firm Thomson West.

The legal scuffles offer a rare glimpse into the sharp-elbowed world of fashion, where the line between inspiration and imitation is razor thin. After all, clothing makers’ trade secrets are hung on store racks for all to see, and designs can be quickly copied with small changes to exploit a hot trend.

The lawsuits, which Levi’s says it is compelled to file to safeguard the defining features on its jeans, are not about the money — one settled for just $5,000 in damages. Instead, the company says, they are about removing copycats from stores. Nearly all the cases have settled out of court, with Levi’s smaller rivals agreeing to stop making the offending pants and to destroy unsold pairs.

Returing to 2009 for a moment, let’s take a look at professor and copyright attorney Kenneth J. Sanney’s post “Overlawyered or Just Over Simplistic on his blog, The Music Law and Copyright Blog, He accuses Kathleen Fasenella of Fashion Incubator of being ill informed and hyperbolic. While taking a patronizing tone against Fasenella - who has decades of experience in the nuts and bolts of garment production - for simplifying the law, he appears oblivious to the fact that while he might be an expert in the music industry, he clearly does not understand how he has oversimplified the inner workings of the fashion industry and the dynamic of trends and how they interface with culture.

He cites legal recourses available to designers if they are unfairly litigated against, but fails entirely to consider that even with said resources in place, designers would still be stuck in spending countless hours of time and energy dealing with this hassle in the first place. Sanney then goes on to ask the question:

Furthermore, in the current business environment how many large corporations are looking to task resources (both time and money) litigating against small businesses and individuals unless they have a serious claim that pasts muster under the most strict cost/benefit analysis?

LOTS OF THEM.  Think this is lame? Sign the petition here.

Let’s return to the Levis situation to try and determine if they are indeed protecting their trademark from imposters trying to cash in on their brand equity, or simply harassing the designers who are successful because they are offering desirable alternatives to the Levis trademark that had become diluted to the point of being unfashionable. It pretty much boils down the following quote by Steven Shaul:

“It was an original design,” he said. “Why would I use Levi’s stitching? If my jeans sell for $200, I would not knock off $40 jeans from Levi’s.”

Precisely. Shaul’s customer might very well be paying for the status of the logo on the back pocket, but they are paying for something to distinguish themselves from the masses in Levis. And Levis has the right to sue Shaul for this? Apparently so…

Back in the 1980s - when Levis were still cool and Americans were offered big bucks for the jeans off their butts when traveling overseas - there were counterfeiters producing jeans that people bought because they could pass them off as Levis. Just like ladies heading to Canal Street today looking for the guys that will take them into a back alley and sell the fake Louis Vuittons that they are trying to pass of as real. And in that circumstance a company should have the right to pursue legal action. That appears to be the sort of activity that the law was designed to protect against, not declining companies out of touch with the current zeitgeist intimidating upstart designers creating distinctive and highly marketed as such new brands that people are paying four times as much for because they are not like the big mass brands…with but as Mr. Sanney will be quick to point out, I’m not a lawyer, so what do I know.

From the blog, Seattle Trademark Lawyer: "Not identical or nearly identical, so no dilution: Levi’s “Arcuate” and Abercrombie’s “Ruehl” stitch designs "

As noted in the Times quote at the beginning of this post, the vast majority of these 100+ lawsuits were settled out of court by designers unwilling or unable to take on Levis, but what happened when Levis picked on someone their own size?

The image on the right is taken from attorney Michael Atkins blog, Seattle Trademark Lawyer, in a post titled Court Finds Abercrombie’s Stitch Design Does Not Dilute Levi’s Stitch Design

In summary, the court found that the subject marks (depicted above) were not “identical or nearly identical,” so Levi could not prevail on its dilution claim.

The court found: “The advisory jury found that [Abercrombie’s] Ruehl design and [Levi’s] Arcuate mark were not identical or nearly identical. In order to be nearly identical, the two marks must be similar enough that a significant segment of the target group of customers sees the two marks as essentially the same. ‘In the dilution context, the ‘similarity of the marks’ test is more stringent than in the infringement context.’

I couldn’t tell whether or not Atkins firm represented one of the parties in this case. I am, however, curious as to what would have happened to the smaller designers Levis pursued if they’d had the resources to defend themselves as Abercrombie did. I also hope that this case provides the precedent necessary for indies to find attorneys willing to come to their defense without large retainers up front.

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