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
Advertising, Data Collection & Privacy
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California Attorney General Reports Upswing in Data Breaches

What’s the News?

In October 2014, California Attorney General Kamala Harris released the California Data Breach Report, the state’s most recent analysis of data security threats facing businesses and consumers. The Report, which notes a dramatic 28 percent increase in data breaches in California in 2013, serves as a reminder to businesses nationwide of the constant threat of increasingly sophisticated cybercriminals — and the need for new and better approaches to safeguarding sensitive information.

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Intellectual Property, Copyright, Patent, Trademark
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Dictating the Use of a Celebrity’s Likeness: Former Panamanian Strongman Manuel Noriega Ousted from Court

Video game developer Activision Blizzard, Inc. recently won a key victory in the ongoing battle over the right of publicity when a California state court judge dismissed former Panamanian dictator Manuel Noriega’s well-publicized lawsuit. Noriega had alleged that his image and likeness were improperly used in the blockbuster video game “Call of Duty: Black Ops II.” Determining that the First Amendment protected Blizzard, the court dismissed Noriega’s complaint with prejudice.

The New Noriega

In the ninth iteration of Blizzard’s popular Call of Duty video game series, gamers step into the role of a commando, taking part in 11 missions set in various eras. Noriega appears in two of the game’s missions, but the character voices fewer than 30 lines of dialogue in his brief appearance.

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Intellectual Property, Copyright
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Barnes & Noble Schools Former FIT Student in IP Suit, as Federal Court Finds Backpack Design Not Copyrightable

A former student of the Fashion Institute of Technology (FIT) recently suffered a decisive blow in her lawsuit against her alma mater and Barnes & Noble, Inc. (Barnes & Noble), which is based on the latter’s use of the student’s copyrighted drawing in connection with the production of a line of backpacks. In largely granting Barnes & Noble’s motion to dismiss, the Federal District Court for the Southern District of New York tossed out most of the student’s claims against the retailer and the school, leaving intact only the student’s claim of infringement relating to the defendants’ alleged reproduction of her drawing. See Rubio v. Barnes & Noble, Inc., No. 14-cv-6561 (JSR) (S.D.N.Y. Nov. 12, 2014).

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E-Commerce, Online Distribution & Fulfillment, Advertising, Data Collection & Privacy
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Incentives and Promotions in the Fashion Arena: The FTC Weighs In

Fashion designers’ retail pricing and promotional strategies have quickly evolved in the last decade, with Internet channels dramatically altering distribution and sales tactics. Many designers craft tactics to carefully differentiate their contract terms among retailers, from high-end, brick-and-mortar stores to Internet retailers and others. The Federal Trade Commission (FTC) recently updated its decades-old guidance on promotional allowances and how they may constitute price discrimination (available here). The FTC’s guidance confirms that designers should offer similar terms to competing retailers, including e-tailers, while long-standing options for tailored pricing remain firmly in place.

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Advertising, Data Collection & Privacy
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FTC’s New Chief Technologist Outlines Regulatory Agenda

What’s the News?

The Federal Trade Commission (FTC) recently named Ashkan Soltani as its newest Chief Technologist. In this role, Soltani will serve as the agency’s top regulator on a variety of issues involving technology and consumer protection. Chief among them are data security and online privacy, which have become major FTC priorities in recent years. Soltani is regarded as an expert in the privacy field and has previously served as an advisor to the FTC, state attorneys general, and major corporations.

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Fashion Law Videos
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The Trouble with Transfer Pricing for Foreign Parents and US Subsidiaries

In this episode of Fashion Counsel, partner Anthony Lupo talks with Tax partner, Robert G. Honigman, about how fashion companies can determine the correct value of a product or service for transfer pricing, while complying with US tax laws.

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Press Releases
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Law360 Names Anthony Lupo One of the Top Retail and E-Commerce Attorneys in the US

Arent Fox LLP partner Anthony V. Lupo was selected by Law360 as a Most Valuable Player in the retail and e-commerce industries for his “savvy business insights” and work “solving issues across a multitude of practice areas while serving as U.S. general counsel for leading European fashion companies.” To read the Law360 article, click here.
 
Law360 reported that Mr. Lupo was honored as one of the top three retail and e-commerce attorneys in the United States “because of his comprehensive knowledge of the global legal issues facing fashion clients. A Swiss Army knife with a law degree, he handles intellectual property, labor and employment, class actions, signage rights and many other legal issues, backed by Arent Fox’s formidable attorney bench.”

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Labor & Employment
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Attention San Francisco Retailers: City by the Bay Becomes First in Nation to Pass Controversial Workers’ Rights Bill

On November 25, 2014, the San Francisco Board of Supervisors passed the controversial “Retail Workers Bill of Rights.” The Bill of Rights is a package of two separate pieces of legislation — the Hours and Retention Protections for Formula Retail Employees, and the Fair Scheduling and Treatment of Formula Retail Employees (the “Ordinance”). The Ordinance will now head to the desk of Mayor Ed Lee, where it is expected to be signed into law. If signed by the mayor, the bill will go into effect 180 days later. The Ordinance dramatically alters the way that covered retailers must schedule and compensate employees in San Francisco.

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Arent Fox LLP Presents: Bah Humbug! Regulations and Legal Strategy for the Holiday Retailer

Anthony Lupo and Sarah Bruno have partnered with the Footwear Distributors and Retailer of America (FDRA) to host This webinar. They will provide a summary of the tricky compliance issues with gift cards and will advise on the best way to structure a loyalty program so as to avoid a compliant under the applicable data collection laws. It will also provide omni-channeling advice for retailers that are collecting data in stores and from mobile apps and web sites.

Guests of Arent Fox should enter code AF2014 for a complimentary registration.

Click here to register.

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Advertising, Data Collection & Privacy
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Results of Caffeinated Shapewear? Slim to None

Two Women’s Shapewear Marketers Settle FTC Charges of Deceptive Weight Loss and Slimming Claims


What’s the News?

The Federal Trade Commission (FTC) recently settled with two separate marketers of women’s undergarments over charges that the companies made false and misleading claims about the weight loss and fat burning benefits of caffeine-infused shapewear products. Norm Thompson Outfitters, Inc. and Wacoal America, Inc. each sold women’s shapewear infused with caffeine and other ingredients. The companies claimed that the shapewear could substantially slim a wearer’s thighs and hips and break down cellulite.

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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.