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Message from the President Keith Toms
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Message from the Editor
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EPO presses pause on proceedings that depend on the plausibility referral to the EBA
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DraftKings Persuades PTAB to Invalidate Competitor’s Mobile Gambling Patent
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Self-Compassion for Lawyers: Dispelling Doubts & Getting Started
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Letter of the Editor
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Survey Regarding Support for Change of Boston Patent Law Association Name
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A stylish direction: how IP can support ethical fashion
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The Copyright Clash Between Artists: A Quiz
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Case Law Committee Meeting Summary - CalTech v. Broadcom
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Writing Competition announcement
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Members on the Move
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List of Officers and Board of Governors and Committees
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Volume 53, Issue 2

A stylish direction: how IP can support ethical fashion

By Danny Awdeh, Finnegan
As the practices of fast fashion draw ire from climate campaigners ahead of Green Earth Day this month, IP can play a key role in promoting ethical apparel brands, as Danny Awdeh of Finnegan explains.
Consumers are increasingly likely to choose clothing and accessory brands based on environmental concerns. A 2020 McKinsey study, “Consumer sentiment on sustainability in fashion”, shows two-thirds of surveyed consumers find limiting impacts on climate change important.
For example, although companies like H&M maintain sustainability goals, some consumers nevertheless boycott all fast fashion because of its environmental impacts, particularly the volume of clothing produced and discarded.
Younger consumers’ social activism also has contributed to the rise of the resale and rental markets. For example, Burberry launched a rental and resale options in December 2021 through a partnership with My Wardrobe HQ.
The role of trademarks
Trademarks not only serve to identify the source of goods and services, but also to convey a brand ethos and philosophy―qualities that have become increasingly more important as consumers want to know “what does your brand stand for?”
The brand name itself can convey a clear ethos/philosophy. For example, self-described “conscious clothing” company, Another Tomorrow prioritises human, animal, and environmental welfare.
The company invests in educating and engaging the community. It posts its animal welfare, living wage, chemicals, carbon offset, and forest protection policies on its website.
It also publishes a magazine on its website discussing different ethical issues such as eliminating microplastics and banning the use of chlorpyrifos in US farming.
B-Corp certification is another signal of a company’s commitment to environmental concerns. Awarded to companies that achieve higher standards of social and environmental performance, transparency, and accountability, certified companies often advertise their status as a B-Corp.
Examples of fashion brands that have obtained B-Corp certifications include Athleta, Bombas, Eileen Fisher, Sézane, and Warby Parker.
As the Council of Fashion Designers of America (CFDA) highlighted in May 2020, supply chain issues exacerbated by the COVID-19 pandemic have made sustainable sourcing even more difficult. Many brands and retailers had to de-prioritise sustainability because of these challenges.
Simultaneously, brands with sustainability embedded in their DNA have seen more success in bringing ethical fashion concerns to light. For example, in June 2020 Gucci announced that it was going to take a “seasonless” approach to combat its environmental impact, including its carbon footprint, heavy consumption of water and chemicals, and excess production. In line with the efforts of its parent company, Kering, Gucci aims to be more sustainable by 2025.
Greenwashing language
Many brands have contributed to changing the narrative around climate change and responsible decision making. For example, Patagonia stopped using the terms “eco-friendly” and “sustainable.”
Seeking to “raise awareness about how unsustainable the clothing industry really is,” Patagonia invited Elizabeth Cline, an expert on sustainability in the apparel industry, to write an article for its website titled “Can We Stop Greenwashing?” Ms. Cline discusses why “eco-friendly” and “sustainable” are on Patagonia’s “list of dirty, banned buzzwords.” She explains that greenwashing is “one of the biggest problems facing fashion.”
By eliminating these terms, Patagonia hopes to honestly communicate to its customers that there are no entirely 100% sustainable brands or sustainable products, even if they are working to reduce their environmental footprint.
Ethical fashion leaders have prompted consumers of all generations to reflect on the consequences of their purchasing decisions and have empowered them to affect change by putting their money behind brands leading the charge.
Many fashion companies are going beyond mere marketing slogans to affect change by developing/adopting innovative solutions. For example, Ralph Lauren, Kering, LVMH, and Capri Holdings have committed to using the Science-Based Targets Initiative―a tool for reducing carbon emissions.
Changing times
As one of the least regulated industries, fashion must adapt not only to changing consumer tastes but also legislative shifts in the US.
For example, New York State Senator Alessandra Biaggi introduced the Fashion Sustainability and Social Accountability Act (Fashion Act) in January 2022, approximately a month before New York Fashion Week.
Stella McCartney (owned by LVMH) supports the Fashion Act, which in part seeks to shift the impact of greenhouse gas emissions in New York.
Senator Biaggi has described Ms. McCartney’s support of the Fashion Act as critical because she is an outspoken advocate for sustainability and regulation in the fashion industry. Separate from the New York Fashion Act, Stella McCartney already does not use leather, feathers, fur, or skins in its products. Since 2010, all Stella McCartney products have been PVC free. Currently, the brand is committed to reducing waste and use of raw materials and increasing innovation of repurposed, recycled, and regenerated alternatives.
If the Fashion Act passes, it will require brands selling in New York that have global revenues exceeding $100 million to “map their supply chains” and disclose the environmental and social impacts of each step, including materials, sourcing, and shipping.
On the west coast, California’s Garment Worker Protection Act (Garment Worker Act) went into effect in January 2022. California has the highest concentration of garment workers in the country, with approximately 2,000 manufacturers located in Los Angeles alone.
In addition to prohibiting piecemeal pay, the Garment Worker Act creates joint and several liability for unpaid wages for anyone contracting for the performance of garment manufacturing, manufacturers, and contractors. It also establishes new recordkeeping requirements.
While operating an ethical and sustainable supply chain can pose complex and costly challenges, fashion brands may no longer have a choice. Ultimately, they need to embrace ethical fashion credentials alongside the IP which strengthens the goals that ultimately safeguard our climate.
As Green Earth Day approaches on April 22, we all have a role to play in driving positive change for the future.
Danny Awdeh is a partner at Finnegan. He can be contacted at: danny.awdeh@finnegan.com
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