Top fashion legal topics – #4 Be fashion, be social!

by DLA Piper

After having debated about wearable technologies, special rules for foreign franchisors in Italy and 3D Printers à la mode, in this fourth post of the fashion-dedicated series, celebrating the Milan fashion week, we will discuss about the new frontier of the fashion industry marketing communication: social media.

We are living in a “social” world – to paraphrase that popular song of the 80s. And the fashion industry is increasingly adopting social media as a marketing platform to reach their customers online and to promote their brands.

But is it all safe or are there legal risks to be considered?

For example, one of the hottest topic is whether a fashion company, administering a page in a social network, a blog or a forum where customers can share opinions and comment e.g. on the latest collection, is liable in case such comments are offensive or infringe third party’s right. That is to say: is a moderation necessary?

The Italian Supreme Court clarified in some decisions that online forums and blogs are simple discussion area, where any user or registered users are free to express their own opinion, and cannot be considered similar to online magazines. According to such case law, an administrator of a Facebook page, a blog or a forum is not subject to the strict liability of the Director of online magazines for defamatory contents published by third parties. But some judges seem not to share the same view: in a recent decision, the Court of Varese (Italy) held that a blogger is liable of the defamation carried out by one commentator since a blog administrator has the “availability” of his website, which entails a liability also for the contents published by third parties therein (see here for details). The same principle could be applied to a fashion company administering a page in a social network in case a user posts disparaging opinions about a competitor and could be relevant in terms of unfair competition. 

Another debated issue concerns fashion bloggers. The online generation is increasingly turning to the web to get answers on fashion. As a consequence, fashion bloggers have become increasingly influential and many companies try to create a commercial relationship with them. However, a risk exists that this kind of activity may be considered hidden advertising, which is not permitted by the law. Actually, advertising must be clearly recognizable and any form of subliminal advertising is prohibited. A violation of such rule may entail a liability for unfair commercial practices or deceptive advertising (and fines are up to € 5 million). 

Going further, it is settled case law of the European Court of Justice (Interflora v Marks & Spencer, Case C-323/09; Google v. Louis Vuitton in Joined Cases C-236/08, 237/08 and 238/08) that the use of a competitor trademark as a selected keyword in internet paid referencing service is not allowed – and the proprietor of the trade mark is entitled to prevent it – where that use affects the functions of the trade mark. But can we apply the same principle to hashtags? 

Hashtags are also becoming a new search engine tool for user generated contents posted by consumers to social networks and a new opportunity for business. The 2.0 consumer is smart and is not easily influenced by marketing strategies. On the contrary, he trusts more his friends and real experiences. Therefore, posting a picture on a social network with a new dress can have a great value for the fashion industry. On this basis, companies like Olapic and Chute are creating new tools to scan hashtags on social platforms and find images of branded products being worn by real people in the real world. Those images can then be posted by the companies owning the relevant trade marks on their sites to inspire other customers. A great idea, but legal risks must be considered: for example, if a user posts materials covered by copyright, or images depicting a friend without permission, then both the uploader and the website could be held liable for infringing third parties’ rights.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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