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
E-Commerce, Online Distribution & Fulfillment, Fashion Law Videos
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Fashion Counsel: Issues in Online Distribution

Worldwide e-commerce sales are anticipated to increase nearly 21% to $1.592 trillion in 2015. More fashion brands will consider omni-channelling to use technology to deliver their products across a variety of channels. These opportunities allow companies to grow, but also give rise to new legal hurdles.

In this episode of Fashion Counsel, partner Anthony Lupo talks with attorney Kelli Scheid about tactics fashion brands should think about when they're expanding into e-commerce. Topics covered include potential issues with distributor agreements.

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Communications, Technology & Mobile, E-Commerce, Online Distribution & Fulfillment, Advertising, Data Collection & Privacy
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Fashion Law Leader Anthony Lupo to Present During MAGIC Vegas

On February 17, Anthony Lupo, head of Arent Fox’s Fashion Law practice will present “Current Legal Trends in the Footwear, Fashion, Accessory, and Retail Sector” during MAGIC, in Las Vegas. The discussion will focus on issues in class-action lawsuits, omni-channeling, social media, and global data protection in the fashion sector. The presentation will provide best practices and lessons learned while in the trenches. They will also cover legal implications of collecting data in-store, online, through mobile apps, and internationally while providing advice for avoiding complex compliance issues around loyalty programs and gift cards. Matt Priest of FDRA will moderate the panel.

Click Here to RSVP.

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E-Commerce, Online Distribution & Fulfillment, Advertising, Data Collection & Privacy
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Massachusetts Issues Draft Guidance on POS Transaction Recordkeeping

What’s the News?

The Massachusetts Department of Revenue recently issued a draft directive setting out what records must be kept for all vendors, retailers, and contractors using computerized point-of-sale (POS) systems. The purpose of the new recordkeeping and record retention guidelines is to ensure that the state can suitably verify what was sold and whether the retailer paid the proper amount of tax. These new guidelines add to the growing list of state regulations targeting POS data collection practices. Any retailers with a presence in Massachusetts may be affected by implementation of the directive and should carefully review the guidance to ensure that their POS systems conform to the requirements.

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Consumer Product Safety
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President Obama Signs Law Changing FDA Review Process for OTC Sunscreens

On November 26, 2014, President Barack Obama signed into law S. 2141, the “Sunscreen Innovation Act,” which modifies the Food and Drug Administration’s (FDA) process for the review and approval of over-the-counter (OTC) sunscreen ingredients. The legislation was initially introduced by Sen. Jack Reid (D-RI) on March 13, 2014. The bill was then passed by the Senate on September 17, 2014 and by the House of Representatives on November 13, 2014 before being signed into law. The legislation has at least some industry support, as L’Oréal USA — a major marketer of sunscreen products — issued a statement in support of the legislation, noting that it will “provide American consumers greater access and choice when it comes to the latest and most effective sunscreen products available.”

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Advertising, Data Collection & Privacy
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Ikea Seeks Class Decertification in ZIP Code Case

What Made News?

Ikea recently argued that a class action filed against it based on alleged violations of California’s Song-Beverly Act should not be maintained. Ikea admits that its sales registers prompt sales associates to collect ZIP codes from consumers, but it argues that associates often bypass the prompt. Because it does not have a policy to collect ZIP codes, Ikea claims that it cannot be held liable for the alleged illegal ZIP code collections.

Details of the Case

Consumers across the country have become accustomed to cashiers’ requests for ZIP codes, phone numbers, or other information at the point of sale. Although the requests are permitted in some states, other states — in particular, California — have strict laws prohibiting retailers from requesting personal information from customers paying with credit cards except in certain limited circumstances.

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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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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.