Fashion Counsel with Anthony V. Lupo

Arent Fox's fashion law blog offers news, analysis, and insights for the industry from fashion attorney Anthony Lupo.

Fashion Counsel with Anthony V. Lupo
Fashion Law Videos
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Avoiding Employment Lawsuits: How Fashion Companies Can Navigate Unpaid Internship Programs

In this episode of Fashion Counsel, partner Anthony Lupo talks with Labor & Employment partner, Michael L. Stevens, about how fashion companies should handle unpaid internships in a litigious environment.

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Intellectual Property, Patent
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Enforcing Design Patents: Old Navy Sued for Sandal Designs

What’s the News?

On September 10, 2014, JPT Group, owner of the iconic American fashion brand Bernardo, filed suit in the Southern District of Texas alleging that Old Navy infringed two of Bernardo’s design patents for sandals.

The Details

Bernardo owns two design patents for the ornamental design of its sandals and alleged that Old Navy misappropriated and slavishly imitated its patented designs as shown in the following side-by-side comparison:

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International Corporate, Importation & Immigration
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CBP Announces Changes to Audit Rules

Auditors Change Sample Transaction Review Process and Pre-Assessment Survey to Match Today’s Audit Standards and to Provide Auditors Flexibility to Target Priority Trade Issues
 

US Customs and Border Protection’s (CBP’s) Office of Regulatory Audit will be hosting a webinar on Thursday, October 9, 2014 from 2:00 pm–3:30 pm Eastern Time to provide an overview of its Focused Assessment (FA) Program.

After 11 years, CBP is revising and updating its FA audit process. The good news is they are focusing more on what matters. The bad news is it will mean more work for importers selected for an FA. While CBP will be more targeted in its approach to assessing risk at a particular company, it will be asking more questions and requiring more sample entries to review. A more detailed description of the changes follows.

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Advertising, Data Collection & Privacy
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California Class Actions? Bass Pro Finds It’s Like Shootin’ Fish in a Barrel

What Happened?

The outdoor sporting goods company Bass Pro recently agreed to pay $6 million to settle claims that it violated California privacy laws. Specifically, Bass Pro faced a potential class action lawsuit over claims that it recorded telephone calls between consumers and the company’s customer service representatives without first obtaining the consumers’ consent.

The California “Eavesdropping” Law

Under California Penal Code Section 632, a company is prohibited from intentionally recording a confidential communication without obtaining the consent of all parties to the communication. Under a separate provision of California law, businesses are prohibited from recording mobile telephone calls unless all parties to the call have consented. The law authorizes statutory damages of up to $5,000 per recorded communication, as well as injunctive relief.

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Intellectual Property, Patent
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A Case to Study on Patent and Trade Dress Protection

* The following article was originally published in Law360. To read the article at Law360, click here.

The Fourth Circuit in McAirlands Inc. v. Kimberly-Clark Corp. recently held that ownership of a utility patent does not necessarily preclude a claim in trade dress rights, particularly where the patent does not specifically cover the asserted trade dress. Remanding the district court’s decision granting summary judgment to Kimberly-Clark, the Fourth Circuit held that, although plaintiff McAirlaids owned a utility patent, this fact alone was not sufficient to warrant a finding that its textile pattern was functional and, therefore, not eligible for trade dress protection.

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International Corporate, Importation & Immigration
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Compliance Officers Beware: Court Decision Expands Scope of Customs Penalty Provisions for Individuals Who ‘Introduce’ Goods into US Commerce

In a case that could have a profound impact on the trade community, compliance officers, business owners, and others can now be held personally liable under the customs penalty statute1 for fraudulently or negligently providing information on imports. Under this decision, import managers and compliance personnel can now be held personally liable in circumstances other than fraud for imports that violate US custom laws.

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Fashion Law Videos
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Lacoste North America CEO Francis Pierrel: What’s Next for the Brand

This past summer, Lacoste launched a mobile app, Lacoste City Tennis, that is part matchmaker and part personal assistant. Users can find a hitting partner and an open court to play on. As Lacoste looks to the future, this strategic initiative reinforces the high-end lifestyle company's DNA as an iconic tennis brand.

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Advertising, Data Collection & Privacy
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At Outlets, Consumers Say Deals are Too Good to Be True

A flurry of recent class action lawsuits is forcing clothing retailers to rethink their marketing tactics for outlet stores. In the last few months, lawsuits have been filed against a who’s who of major clothing retailers — The Gap, Banana Republic, Saks Fifth Avenue, Michael Kors, and Neiman Marcus — stemming from allegations that the companies are misleading consumers about the quality of merchandise sold in outlets.

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Consumer Product Safety, Advertising, Data Collection & Privacy
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We’re Not Getting Any Younger: L’Oréal Settles FTC Charges Over Deceptive Anti-Aging Claims

What’s the News?

The Federal Trade Commission (FTC) recently settled with L’Oréal USA Inc. over charges that the company made deceptive claims regarding the benefits of two of its products. Specifically, L’Oréal claimed that its Génifique and Youth Code facial skincare products could combat the effects of aging by affecting the genes of anyone who used it. However, according to the FTC, such claims lacked adequate substantiation. Given the FTC’s allegations, L’Oréal has elected to settle the dispute and has agreed to a proposed consent order.

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Intellectual Property, Trademark
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If It Looks Like a Duck and Quacks Like a Duck, It Must be Trademark Infringement?

What’s the News?

A recent case filed in US District Court for the Southern District of Florida charges A&E Television Networks, LLC (A&E), with willful trademark infringement and unfair competition stemming from merchandise for the hit reality show Duck Dynasty. The case is a cautionary (duck?) tale about the importance of clearing trademarks prior to use and a reminder about the steps companies can take to minimize their liability under intellectual property laws.

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ABOUT ARENT FOX LLP

Arent Fox LLP, founded in 1942, is internationally recognized in core practice areas where business and government intersect. With more than 350 lawyers, the firm provides strategic legal counsel and multidisciplinary solutions to clients that range from Fortune 500 corporations to trade associations. The firm has offices in Los Angeles, New York, San Francisco, and Washington, DC.