Monday, March 26, 2012

ThinsPo: The hunger pins


Fashion blogs get a lot of media attention but as of late "thinspiration" or "thinspo" blogs have been gaining negative attention. These "pro-ana" blogs promote anorexia through pictures of extremely thin females and tips to help avoid eating.

Do you think ThinsPro sites should be shut down? Do you think operating these sites should be punishable by law (whether by fine or misdemeanor convictions, etc.) as a public harm?

Here are notes listed as tips on thinspo blogs:

  • Someone told me that if you take a pure cold bath for 15-30 min and lower your body temp, your body burns around 200 cals for every degree it has to raise itself to reach a normal body temperature. This person tried it, a 30 min bath lowered their temp about 3-4 degrees
  • Instead of buying food, buy yourself flowers. Food is depressing, but flowers make you happy.
  • Be careful who you tell. It’s great to have online friends – in fact, I would encourage it – but unless you’re 100% positive that your friends or boyfriend/girlfriend will understand or help, DON’T TELL THEM. But, if you’re sure a friend or your boyfriend/girlfriend will be supportive, ask them to help you stick to your plan and meet your goals.
  • Drink one glass of water every hour. It will make you feel full.
  • Wear a rubber band around your wrist. Snap it when you want to eat.
  • Have 6 small meals a day. Take 2 apples, and split them so you can make 6 meals out of them. That way your body will be tricked into thinking it’s eating more.
  • Eating 100 cals 4 times a day is better than eating a 400 cal meal.
  • Thinspo is your best friend. You think you’ve lost weight? Check out some fashion models or skinny celebrities online and you’ll realize that you can probably do better.

Actions taken against thinspiration

Just as websites can get into trouble for contributory intellectual property infringement, tort claims can arise by someone alleging damages for a a harm. So, website owners are wise to disclaim responsibilities and also diminish the possibility of having a legal duty to the users. This is attained through terms of  use.

It is my understanding that AOL was the first to take action by prohibiting material that promotes physical harm to oneself or others. Yahoo followed by removing 115 pro-ana sites because the sites violated Yahoo's terms of service. You can learn more about thinspiration in the Huffington Post article here.

Pinterest's terms of service were recently changed to prohibit material that “creates a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to yourself, to any other person, or to any animal.” Previously, Pinterest only had the condition that they did not allow nudity or hateful content.

Tumblr responded to its large and ever-growing ThinsPro-related blogs by banning blogs it considered self-harming. You can read Tumblr's new policy on its website (here). This new policy includes showing a PSA to people who search for pro self-harm related blog terms.

What are Terms of Use/Terms of Service?

These are terms and conditions website users must abide by in order to use or retain the given website's services. Some websites may require you to specifically check off that you have read these terms but they are often found at a website's footer.

By use of websites such as different service providers, stores, large blogs, and forums. These terms usually shift liability to the user and ban activity that could get the website provider into legal trouble. Here is where the provider often reserves the right to limit a user's access or terminate the user's account due to violations.

If drafted correctly, terms of use will be upheld by U.S. Courts. To make this a stronger possibility your terms should include a severability clause. (e.g., If any provision of these terms of service is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these terms of service, which shall remain in full force and effect.)

What to include in your Terms of use/Terms of Service

These terms are quite straight forward to draft; I have drafted a few for different clients I had in a business law clinic. There are probably tons of templates online but the key is to make sure you are thinking of the services or discussion platforms you provide to users of your website. Amongst other things you want to explain 1. who owns your website, 2. description of your service, 3. who the terms apply to, e.g. everyone who accesses your site, registered users, or anonymous commenters, 4. age restrictions, 5. information on third-party sites, 6. account termination policies, 7. website modification policy, 8. limitation of liability, and 9. a warranty disclaimer.

Keep in mind that due to case law, your warranty and limitation of liability sections must be under different headings in order to be upheld. They must also be displayed in CAPS to be found to properly alert your reader.

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Thursday, March 22, 2012

Louis Vuitton-infringing future lawyers of America

Louis Vuitton v. U Penn Law School

I previously spoke of my admiration for Louis Vuitton's constant policing of its trademark (since it helps ensure the integrity of their mark and gives me continued hope for a career in fashion law). Well, I am happy to report that LV's lawyers are up to their complaining protecting again.

The University of Pennsylvania Law School's IP Group hosts an annual symposium on fashion law. This year, they developed a flyer reminiscent of LV's Toile Monogram. Here is the poster:

Seems innocent enough right? Maybe even flattering?
   ...well, clearly not to this fashion house.

Louis Vuitton's lawyers* alleged that
"this egregious action is not only a serious willful infringement and knowingly dilutes the LV Trademarks, but also may mislead others into thinking that this type of unlawful activity is somehow "legal" or constitutes "fair use" because the Penn Intellectual Property Group is sponsoring a seminar on fashion law and "must be experts." People seeing the invitation/poster may believe that Louis Vuitton either sponsored the seminar or was otherwise involved, and approved the misuse of its trademarks in this manner."
LV goes on to mention how they do support education to the public on intellectual property and that they are a corporate sponsor of Fordham Law's Fashion Law Institute. This makes me wonder, how did LV discover UPenn's poster. Maybe from someone over at Fordham Law? ;-P

While I commend LV not being hesitant to send out a cease and desist letter, I do not agree with the allegations.
  • Infringement:
    • I don't think a judge would find trademark infringement here because although I think the school was making a play off of LV because the Toile Monogram is so famous, showing a parody after the fact/making a social comment is fine after the fact as long as you can verbalize the parody
    • Penn was not using the copied work as a source identifier
  • Confusion:
    • I believe there is a Circuit split on whether likelihood of confusion is a question of fact (clearly erroneous review) or of law (de novo review) 
    • The IP Group shows a list of their sponsors and Louis Vuitton is not on there so I don't think they could get a survey of people who would honestly claim they think otherwise
  • Dilution:
    • Here is a test for dilution by blurring: degree of similarity, degree of distinctiveness, intent to create association, actual association  
    • UPenn claims their poster is a parody, this is an exception to dilution
    • Where a parody is so similar to the famous mark that it could be construed as actual use of the famous mark itself, then it could be dilutive
    • U Penn cannot claim he non-commercial use exception since they offered CLE credit, making a commercial use link, but the parody exception may work for them
      • Parody is relevant to the overall question of whether the use is likely to impair the famous mark’s distinctiveness. Here it clearly seems the parody would not impair LV
    • Dilution does not require a showing of consumer confusion and so lacks built-in 1st Amendment safeguards that infringement claims have
I love that in his response, general counsel for Penn Law invited LV's counsel to attend the symposium.
The (possibly passive aggressive) letter from Penn also tells tells that
"the students have invited some of the in-house counsel from some of [Louis Vuitton's] peer fashion companies to speak on the panels..."
...Does this mean that the school reached out to top fashion houses but not Louis Vuitton? But they like LV enough to play off of LV's trademark? Tsk, tsk. :)

Read the entire cease and desist letter (posted on U Penn's website) here.
Check out U Penn's reply (also from U Penn's website) here.

Btw, what do you think of my new layout? I changed to a more simple one. 
See my original one here: 

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*I love that the last name of the lawyer who signed the cease and desist letter is "Pantalony." In French and Spanish the translation of pants is pantalon and Mr. Pantalony is working in fashion law-haha. Am I the only one amused by this?

Monday, March 5, 2012

Fitting room fun with Madmen style

Review of Banana Republic's Spring 2012 Mad Men collection & sprinkles of J Crew
If you follow me on instagram you know I previewed this fit review post.
I'm obsessed with this pink color but unfortunately not with the cut and fit of this dress

Despite the petite sizing, this dress swallows me, making it more prom dress than work attire. Aside from the taffeta, the bow and princess shape (that hides cleavage making it good as business cocktail attire) does not a 'Betty' make on me.
Like last time (here) I think this dress is more fit for a bride's maid. Some alterations (like making the straps thinner or dropping the neck lower) could make this dress a great date night dress. The cost of alterations would be worth it for this 100% silk dress that is fully lined and reasonably priced at $150.
Here I am pulling at the extra material
If you liked the similar one from the last capsule collection but found it too big, this one (here) may be worth the try. The fit is smaller than last time (see here) but the length is still much longer than intended.
A better fit from this limited collection:
This dress can be also worn without the included sash belt. I am sorry that I was too excited about the polka dots to snap a picture without the belt. This stone wash color serves as a great canvas for silk scarves (as I've shown herehere, and here). The length of this dress is also much better than the one above.
These pants are a little on the absurdly tight side, especially to pull off as work attire for my body shape. I could have tried the 2P but I do not care for the length of these and they reminded me of the J Crew ones that I found more comfortable. If the fit were right, the color could be styled to be appropriate for some work environments. The key is to make this your only statement piece by pairing them with neutral tops and blazers: think creams, grays, and whites. Although a dark blue may be a tempting color blocking contrast, you likely need to keep that for your weekend looks. -If you are in the legal field, such a stark contrast draws too much (unprofessional) attention.
The flamingo pose
Pink "majesty" cigarette pants (here)
Size reference: 0P
Compare with JCrew:
 J Crew cafĂ© capri (here)
Size reference 00 (instead of petite to keep this length)

J Crew minnie pant (here)  
Size reference: 00
Shoes: J Crew Valentina pumps (here)
Do you plan on wearing spring trends to work?

I hope this review is helpful to you. For you ladies who are on the thinner side, I suggest checking out Banana Republic's cigarette pants. I found the fit tighter than the usual equivalent size at BR. I heard that the collection is only being sold online and in stores until March 20th and although I find it hard to believe that they will pull unsold items from the shelves instead of leaving them to be sold, this likely means that once a size is sold out it will be hard to locate them again.

Personally, I took to the colors and fit at J Crew more. I am also interested in similar Ann Taylor ones (here and here).

By the way, you get 25% off of Banana Republic online through March 5th with purchase of $100+ with code BRMARCH25. 

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