What Fashion Brands Need to Know Before Posting Click-to-Buy Images – Trademarks

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Emerging technologies from AI to society metaverse influences every aspect of modern life, and the fashion industry is no exception. More recently, ‘click to buy’ functionality has allowed fashion brands to profit by linking photos of clothing to websites where the item can be purchased. The addition of this new commercial element has legal implications that fashion brands, marketers, and others involved in the fashion business should be aware of.Ann Experienced Fashion Law Attorney helps you navigate the do’s and don’ts when posting click-to-buy images.

Include comments to avoid trademark issues

Under Section 43(a) of the Lanham Act, a false endorsement is associated with a product or service in such a way that the person’s identity is likely to be misled by consumers as to their sponsorship or endorsement of the product or service. Occurs when When a fashion brand posts a click-to-buy image that directs users from a model’s image to an online purchase point, the brand risks false endorsement claims from the model.

In evaluating claims of this kind, New York courts will determine whether the public interest in avoiding consumer confusion outweighs the public interest in freedom of expression guaranteed by the First Amendment. Use the balance test for If a click-to-buy image is posted alongside an article or content providing commentary on the clothing depicted in the image, then within the safe zone for expressive works under the First Amendment to the U.S. Constitution more likely to fit in In balance tests, expressive work almost always outweighs consumer confusion, thereby protecting brands from false endorsements and promotions. trademark infringement Claim. To ensure that your post is considered an expressive work, please be sure to include comments of an editorial, journalistic, or creative nature. Also, make sure that the image you click to buy is artistically related to that comment. The bar for “artistically relevant” is intentionally set low, so you should focus on creating comments that accompany the images you click to buy.

If the model lives in a state with portrait rights, do not use the model’s photo without permission

Publicity rights are the rights of individuals to control the commercial use of their name, image, likeness or other similar aspects of their personal identity. About half of the states in the US recognize publicity rights. New York is one of them.

In New York State, publicity rights are codified by the statutes of Sections 50 and 51 of the New York Civil Rights Act. there are some exceptionsNew York State’s Publicity Rights Act prohibits the use of a person’s “name, likeness, photograph or voice” for advertising purposes without that person’s written consent. To claim publicity rights in New York, the person depicted must be a resident of New York State. In other words, models living in California cannot claim publicity rights under New York law.

In the context of click-to-buy images, the photo has a commercial dimension as it promotes the brand’s product and links to the point of purchase. Therefore, if you hire a New York-based model, you must obtain their written consent to use their images in advertising.


traditionally, Copyright disputes are rampant in fashion photographyBut as click-to-buy images become more common, it’s important for fashion brands and marketers to be mindful of their models’ trademark and publicity rights. By including editorial commentary along with click-to-buy images, fashion marketers can seek protection under the First Amendment Safe Harbor for expressive works, thereby preventing erroneous You can avoid endorsement claims. Additionally, be aware of where your model resides, as their portrait rights will be affected. For example, if a Click-to-Buy image features a New York-based model, obtaining written consent is paramount to avoid potential publicity rights claims. If you have any further questions, contact us Our team of fashion law attorneys can advise you.

The content of this article is intended to provide a general guide on the subject. For your particular situation, you should seek professional advice.

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