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I Didn’t Recognize You with Your Clothes On




by:
Alan Behr
Phillips Nizer LLP - New York Office

 
June 5, 2014

Previously published on May 28, 2014

That was a pickup line in the tavernas of the island of Mykonos back in the day, spoken to fellow vacationers fresh off the clothing-optional Paradise Beach. In the ongoing and sometimes dysfunctional relationship between clothing and the law, the usual first requirement of the law is that you wear some. Not that anyone on Mykonos asked what Greek law said about beach attire. And Mykonos is not alone. Nudity is forbidden on the fashionable Caribbean island of Saint-Barthélemy, but the island’s own website advertises the virtues of its two enchanting nude beaches.

Could it be said, where beaches are concerned, the law makes allowances?

Consider that, on a chilly May morning in San Francisco a few years ago, while I was attending the Annual Meeting of the International Trademark Association (INTA), I put on every piece of warm clothing I brought with me and left my hotel before breakfast to catch the start of the Bay to Breakers Race—which is more of a brisk constitutional in outlandish costumes than anything resembling a marathon. As the race progressed, men and women dressed for Carnival passed by in great numbers and, within this crammed costume parade, a few were sauntering—not running—in the nude (save for sneakers). San Francisco has since adopted an ordinance banning public nudity (something it had previously not bothered to do), but our Bay Area correspondent, the Fabulous Mrs. John, reports to us that the naturalist practice remains a feature of the race.

In People v. Santorelli, a case decided in 1992 by the Court of Appeals of New York (the state’s highest court), the law making it a crime for a woman to expose her breasts in public was ruled inapplicable to topless sunbathing in a public park on the grounds of discrimination based on sex.* More than two decades later, New York women are still getting picked up by overzealous police officers unfamiliar with the case law.

Suffice it to say that, around the world, this most simple of legal imperatives about fashion—when outside, put something on—has had a ragged enforcement history. There are also laws about fabric composition and the identification of country of manufacture, among other essentials that apply to each article of apparel—and on and on from there.

The point is, starting with the simple insistence that we all wear clothes, the law has interposed itself into every aspect of the fashion business. For that reason, consulting your lawyer before you get going on anything both new and important—or before getting yourself involved in something that your business judgment foretells may not sit well with someone else who might have reasons and the means to oppose you by resort to law—is the classic ounce of prevention that obviates that often painful (and expensive) pound of legal care. In short,...

...when in doubt, call your lawyer before you get going with something new
or before trouble starts.

Do not wait until the vendor fails to deliver by the due date because no contract says he has to, until the cease and desist letter arrives, or until the competition poaches your key people. For the sake of sleeping well at night, there is no better time to get your lawyer involved than at the earliest moment you can. To do otherwise is like walking outside without your clothes on. And we all know than where that can lead.


* I am aware of the adaptation of the word gender to serve where sex was once employed. The English language is ever evolving, but here I will follow classic usage: nouns have gender, and people have sex.



 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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Phillips Nizer LLP
 
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