WIPOD – Page Points: Transcript of Episode 22
Intellectual Property and the Luxury Industry
Olivia Dhordain
There are a lot of Netflix series about private practice. We all know basically what goes on in a private practice law firm. But in-house, it's a great mystery. Nobody knows really what we do. So it's a way of sharing that and showing students that there are different ways of practicing the law and IP. And that in-house is definitely very rewarding.
Anca Ciurel
Welcome to the Page Points podcast from the WIPO Knowledge Center. My name is Anca and I will be today's host. Together, we will be diving into the world of luxury, law, creativity, and all the messy emotional stuff that lives in between. My guest today is Olivia Dhordain, the author of Luxury in Court: All That Glitters is Not Law.
Olivia, thank you so much for joining us today.
Olivia Dhordain
Thank you for having me.
Anca Ciurel
Let me start with the obvious question. This book could have been a very serious, very technical legal guide, but it isn't. It's fictional, narrative, funny, and sometimes its stories might seem absurd to a non-legal audience. What inspired you to write Luxury in Court? And why did you choose to feature fictional characters and brands to tell real stories?
Olivia Dhordain
Well, when it comes to your first question, why choose that style? I think very honestly, there are more competent writers than me to write academic books. We know some very good professors, very good law practitioners who have written already very, very interesting and in-depth legal books on fashion law in particular. So, taking the storytelling approach was taking perhaps an iconoclastic way of approaching the law.
I think humor, both in the legal profession and in luxury, isn't necessarily the norm. And I think bringing a bit of lightness helps. I must say that the stories are not real per se, the book is constructed around real court decisions. What happens behind the scenes is fictional, based obviously on what I've known and seen, but since a lot of these court decisions I didn't handle myself, I resort to fiction, which is also a way of bringing that lightness which I sought to bring.
Anca Ciurel
I'm really curious to know why now? Was there a particular moment in your career when you thought: “There is absolutely no way a legal memo can explain what's really going on here. This really needs a book.”
Olivia Dhordain
Why now? I think, you know, I've been working as an independent for two years. I've taken that little distance from what I lived. I don't think you can write this book or that type of book when you're inside. You do need that little distance. And people were telling me that I was a storyteller and that I should write books. And writing has never been something that I've dared to do after authors like Flaubert, Shakespeare. You know, what can you bring to the world of literature?
And because my stories were taken with humor, I thought, you know, why not? And the stories were all there. It literally took me three months to write it because I was just in a flow of writing the stories for that.
Anca Ciurel
That's amazing. I can't believe it took you three months to write this amazing book. I really loved it. I thought it took you a few years and I really like the fact that you mentioned you needed a bit of distance and you're right.
Also with all the experience you've had, it was beautiful to see all the experience that you've had within those different fashion houses and to integrate it and show it differently to the audience.
It's also beautiful to see the images inside the book, there are a few images, and I think that those images come from you. You drew them. So, I was interested to know a bit more about that as well, how it came about. I saw the cover also. I think you are the one who prepared it, the images of Alice throughout the book. Can you tell us more about this?
Olivia Dhordain
Well, I've always drawn, I've always sketched. And in a way, it was a way to bring Alice to life in my imagination. I wanted her to be, you know, not too serious, accessible. And so, drawing her was a way to do that.
Anca Ciurel
So, speaking about Alice, your main character, she's an in-house IP lawyer. She's observant, ironic, sometimes tired, sometimes amused, and sometimes deeply unimpressed.
What was the inspiration behind her character? And I would be really interested to know if Alice is somehow you.
Olivia Dhordain
Just to address the second question, no, Alice is not me. Obviously, there's inspiration for what I've been through, but when I was writing the book, there was the question of who would be the narrator? Was it going to be an I-book? If I had been telling my story, I wouldn't have been able to talk about all these different cases, which no, I didn't contribute to in any way, would have been quite, there would have been a lack of humility, I think, essentially.
And also having Alice does enable me to have that distance, that humor. I'm comfortable that I'm not telling my story. And Alice is not actually the central character, a little bit like Alice in Wonderland. She's just a guide into understanding what a luxury brand is, just as Alice through her adventures, takes the reader into the world of absurdity and shows to what extent.
So obviously, yes, Alice is inspired by Alice in Wonderland. And initially, each chapter had a little reference to the book. It became a little too heavy, so I took them out. But typically, the first story about the designer's name and being a brand, it was about the Cheshire cat and the grin without a cat and the cat without a grin.
But every story could relate to a chapter of Alice in Wonderland for sure.
Anca Ciurel
I love it. I love to hear that. And also, the way you've integrated this whole idea and concept of princesses throughout the book and brands being princesses. Can you tell us more about this concept? And I really am interested to know what makes a princess.
Olivia Dhordain
I think that's the subject of the book is trying to understand what makes the princess. Is it her dress? Is it her crown? Is it her personality? The princess analogy comes from... You develop a certain tenderness for these Maisons. They all have very different personalities, different histories, different cultures. And it's interesting to see how people who work for these brands become the embodiment of the brands. They take the same personality.
Cartier is very French, very arrogant, a very queen of design, and people behave that way. When you go to the German brands, it's a very different approach and way of being. And telling the story is also a way of bringing them to life. Typically, Piaget is often referred to in Richemont as a sleeping beauty. That's the term that's given to a brand that hasn't quite reached its potential. And when I thought about it, I thought, no, Piaget is definitely not sleeping beauty. She's the queen of the night. She's Cinderella. She's going to go to the ball and pick her prince. She's no sleeping beauty. I mean, she perhaps hasn't yet gone to the ball, but she's definitely Cinderella.
Actually, at one point I did drawings of my little princesses and gave them to the CEOs. I think it was unexpected. It made them laugh.
Anca Ciurel
I love this and you also start the book with the analogy between the different princesses and how the French Maisons, the jewelry and fashion houses are somehow the queen bees of creativity and how the Swiss Maisons, the watchmakers are consistent and precise and really focused on perfection. I really liked how you created this analogy and also this imagery in our minds while we read the book.
Let's dive into the book. I had questions. Something really stands out to me in the book. It's mostly how emotional luxury law can be. And this is what we discover throughout the book, that disputes are not only about trademarks or contracts, they're about identity, ego, legacy, and sometimes even grief. Why do things get so intense so quickly in luxury disputes?
Olivia Dhordain
It's about being either at the start of a brand or the founders completely invested in a creative brand; the brand is them. And then later when the brand is very well established and decades or even centuries have passed, there's a feeling of great responsibility that each of the CEOs have, but they bring their personalities, they bring their melody to the brand, and each CEO is going to build on what has been done in the past. That's also something that was often referred to as, you know, the CEOs are on the shoulders of those who were there before him or her, starting to have her CEOs.
But yeah, there's a lot of intensity, I think, because it's a creative business and all of those who gravitate towards the luxury business have a creative streak to them and they're participating in a form of creation which is collected by nature, in which personal identity ends up in being overtaken by the brand itself, but everyone contributes to it somehow.
Anca Ciurel
I love how you say the brand is them and how the CEOs embody the brand and it makes me think of one of your stories where one of the CEO says, but I am the raccoon. It's beautiful to see that and how emotional and important it can become something that might seem from the outside so distinct in a luxury house is interpreted differently or it is more important.
Olivia Dhordain
Yeah, and sometimes you're so much inside that things that are obvious to you, you know, I do butterflies, nobody else should do butterflies, butterflies are mine. And then you have to draw the line. At what point is an animal so close to the brand identity that you will defend it? And at what point are insects so common in the world of jewelry that you have to draw the line. But when you're inside, sometimes you lose that objectivity.
Anca Ciurel
And I think this is the beauty and the role of an IP lawyer within such a Maison because they have to draw the line and explain to the creatives, okay, this can go up until here and these are the limitations of IP, how we can use IP to our advantage, but also that there is some limits to what we can actually do.
Olivia Dhordain
But as we see in the raccoon story, sometimes we're pushed to our limits and it's a good thing because it makes us stretch what is possible and test as well.
Anca Ciurel
Exactly, and come up with remarkable case law as that one.
You write about designers selling their own names, brands fighting over animals, like such as the raccoon story, letters and colors, things that might seem almost ridiculous from the outside, but from the inside, they're treated as existential threats. What is really at stake in these battles?
Olivia Dhordain
I think often when you hear about luxury and the threats, very quickly you're pushed into discussions about counterfeiting and how you address that threat because it's massive, it's very visible. But actually, I think the more intense cases are not about counterfeiting, they're about establishing a territory and an identity in a very small world where there are competitors and the big battles happen at home because, for example, in watchmaking you are in a very small area territorially you are working with a very small surface which is the surface of a watch, and in all of that you have to stand out and that's where intellectual property tools are going to help you stand out.
And of course you have the registered tools, but you have all that soft IP around it which contributes to your identity. And you're going to want to avoid that your competitors come onto that turf. And so, it's really those overlaps that are the most intense battles in the world of luxury.
Anca Ciurel
Yes, you're right. The biggest battles are definitely fought at home, not necessarily internationally. A theme that really struck me is the idea that iconic products can end up trapping the brands that created them. Can you explain to us this paradox? And how does an icon go from being a brand's greatest success to its biggest problem?
Olivia Dhordain
One has to acknowledge that it continues to be successful. But I think our role is also to anticipate. So in my book, the analogy that I make is that the story of the princess and the pea can slip into the story of the pea and the princess, but no one's interested about the pea. After a while, the pea under the mattress doesn't really live a very exciting life. And with an icon, the risk is to reduce the scope and the importance of the Maison’s brand. If Cartier becomes the love bracelet, if Hermès becomes the Birkin bag, what is left and what space are we giving for innovation and creativity?
Anca Ciurel
I love also how you mentioned in the book that your icons, which are your greatest assets, can become your greatest liability, also in terms of circular economy. And you explained that the solution to this is to be more creative, to redouble your efforts, to come up with new IP and compete with yourself. You compete against your own products, but you have to find ways to be more creative. Come up with something even better than what you actually came up with before.
Olivia Dhordain
That is the risk when you have a best-selling product that just sells and sells and sells. You can and you have the risk of becoming a little lazy on the innovation and creative front because again, creativity is an investment over time. You have to allow for failures. You have to allow for something to fail at one point and then be revived later down the line. It's a very iterative process which takes time.
And it's true that the more the luxury world is financialized or run by finance, the shorter the terms, because you have the fiscal year, you have the quarters. Creativity, innovation, and even IP definitely doesn't work on a financial year.
Anca Ciurel
Yes, and definitely this is what you do when you work in-house. You are part of a business and mostly you are a lawyer, but there's a clear difference between giving legal advice and being part of the business and making decisions that are good and healthy for the business.
Olivia Dhordain
You have to do a bit of both. You'll probably risk managing much more. You don't want to say no. But sometimes you have to reframe a little bit. And what's interesting is sometimes the reframing or the limits that legal provides was going to push to an even more creative product: that's happened from time to time.
Anca Ciurel
One thing that I particularly enjoyed is how you portrayed each case and you provided also at the end of the book a list with the court decisions that inspired some of the stories. I was happy, really happy to discover, rediscover some cases that I knew about while reading but sometimes on some occasions I found myself reading more case law than I thought while reading the book, which was quite amusing.
I think that we can both agree that some cases in the book are truly remarkable. Courts are being asked to rule on who owns a color, a scent, and even an animal. What do these cases tell us about the limits of intellectual property law? Are luxury brands trying to protect what the law simply isn't built to handle?
Olivia Dhordain
I think what's interesting as an in-house counsel is that you are always trying to push the limits. Scent for me is something which is unfairly not protected, simply because we haven't found the means or the way to express it. But that's down to our lack of vocabulary, our lack of effort to create that vocabulary. I'm personally convinced that AI might help us create a language which we can all agree on. But it is a form of creativity which, in my opinion, should be protected. And this is typically in-house, you identify the stake, you identify the importance of that intangible for your business. The Chanel Numéro 5 is part of the brand and as in-house, you're going to look at all the different means. It might be through the law, but there will be some considerations on technology. Will new technologies help us do things? And I think because intellectual property lawyers work in the realm of innovation, we also need to be innovative and seek what doesn't seem possible in different jurisdictions. There's also a lot of play on what is possible in different jurisdictions.
Anca Ciurel
You have an interesting chapter about this and about perfume and when scent meets copyright and when the nose becomes a lawyer. So, for our readers, it would be interesting for them to look into this and see more the links with AI, as you mentioned.
I wanted to ask you, in the book, you explore also the topic of luxury and art, mirroring one another too closely. Can you tell us more about the fine line between inspiration and copying?
Olivia Dhordain
That's the great question and in the book Marco, who is the embodiment of the typical head of communication or head of marketing, finds it very frustrating not to be able to identify that difference and yes, it's a fine line, but just as cultural appropriation can be a fine line, at what point are you giving a tribute to a certain culture, a certain traditional know-how, and at what point are you appropriating it wrongly?
There are some examples that I give that are quite extreme, but when you take inspiration from one author, one creator, there are chances that you're going to be on the fine line of copy or derivative work. So, opening that inspiration as much as possible and being able to find different inspirations are probably a good way to ensure that you're doing something original.
Often the difficulty also with big brands is they work with agencies and those mega agencies work with different brands. They operate with walls, but nevertheless, there are trends that are omnipresent and the risk of diluting the identity is that I think that risk probably is stronger with the advent of AI because it's churning the same content for everybody. It's important for the Maisons to keep an eye on their patrimony, their DNA, their territory, their signatures in order to stay true to themselves.
Anca Ciurel
Yes, and I definitely like that you also speak about AI and the emerging technologies and how emerging technologies sometimes respond to some issues within the luxury industry but also there are some risks. As you know, we have worked together on some of these topics as part of capacity building activities within WIPO.
I know you have an in-depth knowledge about emerging technologies when it relates to the luxury industry from blockchain to NFTs, AI and the virtual world. I would be interested to know if you see technology as a threat to luxury or more as an uncomfortable mirror reflecting where the industry is headed.
Olivia Dhordain
I don't see technology as a negative in itself. Technology is a tool which can be used in a positive way or in a negative way. If you take AI, I think if you go with the flow of using AI too easily, you may risk something.
Typically, there's something that I've noticed is the AI generated face, feminine model. You find her everywhere. She has a little trumpet nose. She has high cheekbones. She has big eyes and pulpy lips. You see her on hair adverts. You see her on Max Mara online shopping, which is all AI generated. You even see her in a Chloe ad and that for me is tragic.
On the other hand, if you consider that you could apply AI to your patrimony, which is scan digital. It can become a formidable enhancer of creativity because what is, you know, we use 2%- 5% of what's in the archives. If an AI can help you say, you know, bring out the love letters between Louis Cartier and Jeanne Toussaint, bring up the colors from that period, I'd like to tie it into a design of the 50s and the machine will help you delve into what exists and certainly has the capacity to enhance your creativity. I think there are lots of ways to use technology and it just has to make sense.
When we put in place the blockchain, it was very early on, not because I'm a geek, I'm everything but a geek. I don't know how to turn on the television at home anymore. When someone brings in an idea and it fills the gap, then you have to be curious and you have to see what you can do with it.
Anca Ciurel
I love how you mention AI with using inspiration. We often don't think about that, but also in the book you speak about how we can use AI to see designs from 100 years ago that the designers drew or letters or information. I think this is a really great resource that more and more designers can use to build their collections and inspire themselves rather than other more contemporary inspirations.
Olivia Dhordain
And not just designers, I think the storytelling that you can really find, the sources are extraordinary.
Anca Ciurel
You also discuss resale, customization, and the circular economy. I wanted you to maybe tell us more about why the secondhand luxury market is threatening luxury brands.
Olivia Dhordain
I think the biggest threat is, often this happens in the luxury world, there's a sort of conservatism and a refusal to see what's coming around the corner. When I arrived at Richemont, it was in 2007, and I had discovered a second life through my husband who was working on the media aspect.
As I researched, I found that there were virtual counterfeit watches. I ran to my boss and I said, look, we have to set a precedent because not only can you buy a fake virtual, but if you click on the link, there are counterfeits that are being sold in the real life. And there's that notion. And we've just rediscovered the metaverse as if they were something new, but in 2007, they already existed. And he looked at me and said, “Olivia, I really don't think that's the priority.”
Today we are in the middle of a debate to know whether one day luxury will be sold online. Half the business thinks it will never be sold online. It takes a little while for things to kind of be integrated. With the secondhand market, I think that there's a combination of things. There's a risk of losing those Gen Zs, which are very aggressively targeted by brands, but at price points which they can't afford. There's a constant creation of frustration which can get toxic. Those Gen Zs are very at ease in navigating that secondary market. They know that they can get an original piece for half the price and it's legal. If the product hasn't been tampered with, it's legal. There’s already that aspect where potentially there's a loss of data, client data, adherence to the brand, which is a big threat, I think.
When it comes to customization, there's the question of personalization, which brands are just starting to approach, but in a very conservative way again. With personalization, it's the question of exhaustion of rights and the limits of what a trademark owner can do. Now, once again, Rolex is one of the most aggressive brands who is choosing the route of litigation to see how far it can stretch the trademark right beyond the exhaustion of rights. Now, for me, from a legal perspective, that is a bit of an issue because we're starting to stretch a trademark owner's right into almost a moral right of integrity on the product.
Was that the intention of the legislator? How long can we fight that? There's the case of this Artisan Genève and Rolex, which I tell in the book, where there is also a hesitation from the courts because they know that that secondary market, that circular market is something that we can't ignore. There's actually a whole paragraph in the decision of the Tribunal Federal which says, okay, we have to be careful in what we say because it's an important point. It's something, you know, that will be a weight in our decision. We have to be careful with that.
Anca Ciurel
This is very, very interesting and I definitely think that we have to continue to follow up on what's going to happen and how far it can really go.
Olivia Dhordain
There's an additional point which I think I'm not sure that luxury brands are very aware of. Again, it's about being inside. When you're outside, you start seeing more things, I think. A lot of the luxury industry is reliant on, heavily reliant on the selective distribution model. The selective distribution model is based on the idea that I am going to give you an exclusive right to sell my products in this area. And you're going to pay quite a sum for that exclusive right because it works for you. Let's imagine that Harrods has an exclusive right to sell this luxury mug. Just next door to Harrods, a big department store is created which sells only secondhand products of the same brand. All of a sudden, the incentive to pay an exclusivity disappears completely because just next door there's someone selling products legally at half the price, at a quarter of the price.
So again, it's something that is strategic, I think. The growth of that secondary market is huge. We're starting also to see that it's so unregulated that there are more and more counterfeits, more and more issues. How does the brand approach that? They can't ignore it. It has to contribute to securing the client's purchase. If it doesn't engage, the risk is that the brand identity will be harmed, that the brand credibility will be harmed.
Anca Ciurel
Speaking of brand identity, one of my favorite ideas in the book is that not everything valuable can be protected through IP. Some assets like a brand's story remain intangible and you do touch on this topic in the book. If a brand can't legally own its story, how should it protect it?
Olivia Dhordain
I think in those cases, the only protection is occupation. There's an expression in French, don't know whether it exists in English, which is that nature doesn't like emptiness.
It's going to fill the emptiness quite naturally. If a brand doesn't invest and engage in its own story, somebody else will tell it. I think one of the big questions is how do you tell that story? Traditionally, even now, there's a temptation to tell just the glitzy shiny part of the story. Some more shadowy parts of that story are not addressed.
I think it's a shame because it actually gives more value, more reality to those brands.
Anca Ciurel
Is there anything else you want to share with our audience about your book and what do you hope readers take away from it? Also, what would you like our listeners to remember from this conversation?
Olivia Dhordain
I think that what makes me happiest about this book is the responses I get from students, young professionals who have a passion for creativity and innovation, who want to serve that creativity and innovation. I think this confirms their wish to work in that space in that area. I like the fact that they are taken by the stories, that they are seeing the stakes beyond the technical aspects of the intellectual property.
I think that's what's the most rewarding for me, being able to transmit experience, on the ground experience, so to speak, to students, because that's not something that they'll get in university, they'll enter the world of practicing law very innocently. And perhaps this gives them a few insights into what they will do. When I left private practice, I realized how unknown the world of in-house was. All my colleagues were saying, you can't go in-house, you'll be so bored, you'll be doing contracts all day. I came from litigation and it was the contrary.
And it's true that there are a lot of Netflix series about private practice. So we all know basically what goes on in a private practice law firm but in-house, it's a great mystery. Nobody knows really what we do. It's a way of sharing that and showing students that there are different ways of practicing the law and IP and that in-house is definitely very rewarding.
Anca Ciurel
I have one last question for you before we wrap up. I saw that you've been sharing short readings and excerpts from the book on LinkedIn. What made you decide to promote the book in that way? I'm interested to know how the readers have been responding online.
Olivia Dhordain
Why? I think very simply my network is very much on LinkedIn. I've been developing quite a bit. I've always had young people write to me either because they wanted a job or because they wanted to talk. I didn't have a job every time. So that's where my network is. It was obviously going to be LinkedIn.
I thought little videos that would be in a kind of teasing format would at least show the tone. Yeah, again, the way I approached the topic, I didn't want to alienate non-lawyers. The responses are great. And I have to say there are some reviews on Amazon which I particularly like. One of them is something to the effect of this is someone who's been in the trenches. I really like that people understand that it's giving a portrait of a certain reality through humor, obviously sometimes because of the narrative and literary angle that's a bit exaggerated. But the idea is to give a portrait of what a luxury brand is and the angle of IP is not a bad one at the end of the day.
Anca Ciurel
I agree. I wanted to ask you a question that everyone listening to us might be asking themselves. Do you plan on publishing a second book on Alice's stories? Also, if Alice were to return, what do you think she would be dealing with next?
Olivia Dhordain
That's interesting because I'm actually starting to write the prequel. So, I'm going back in time to the moment when Alice is sworn into the bar and decides to start her career as a private practitioner. Again, it's going back to the sources, how you learn the business and the profession, in a hard way because it's often quite tough. And then perhaps, I'll probably go back to Alice in the future where perhaps I'll be trying to look at what happens outside court, and what happens in product development.
It's going to have to be more fictional because obviously I can't tell real stories about what happens inside, but there's so much that goes on with the clearance, with the research and development. Again, the stakes of what goes on behind the scenes. A product can take up to eight years to go from sketch to reality. What happens during those eight years? And what is your role as an IP lawyer to protect that very vulnerable phase? So, I think that's something I'd like to consider. Right now, I am doing the easy part, which is the prequel.
Anca Ciurel
Amazing. I'm really excited to read the prequel and the one that comes after. Thank you so much, Olivia, for being here with us today. It was such a pleasure to speak to you.
Olivia Dhordain
Well, thank you both for reaching out.
Anca Ciurel
I would just like to conclude, Luxury in Court is a smart, sharp, funny, and refreshingly honest book about how luxury really works behind the scenes. I hope you enjoyed my conversation with Olivia, and I want to invite you to search for Luxury in court online. To find out more about Olivia and her book make sure to follow her on LinkedIn.
More information about the book and other IP works in our collection can be found via the WIPO Knowledge Center. Thank you for listening to this episode of Page Points.
Until next time!