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
Consumer Product Safety
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FDA Issues Warning Letter to Skin Authority

The US Food and Drug Administration (FDA) recently sent a Warning Letter to Skin Authority, LLC, due to marketing claims used by the company to promote its personal care products, including its “Wrinkle Reversing Serum,” “Moisturizing Lift Cream,” “VitaD Fortified Topical Elixir,” “Reviving Eye Brightener,” “Coffee Almond Scrub,” and “Bamboo Ginseng Scrub.” The FDA states in the Warning Letter that claims used to promote these products cause them to be “drugs.” The FDA objected in part to the following claims:

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Intellectual Property, Trademark
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Macy’s Fights to Win Back Allegedly Abandoned Trademarks

What’s the News?

Macy’s, Inc. (Macy’s) is currently engaged in litigation to regain ownership of multiple trademarks associated with Macy’s-owned department stores that are no longer in use. Claiming that the marks were abandoned, Strategic Marks, LLC (Strategic Marks) filed applications for — and ultimately obtained rights to — the trademarks in dispute at the US Patent and Trademark Office (USPTO). The outcome of the case, which is pending in the Northern District of California, will help clarify exactly when a trademark is abandoned, making it fair game for other companies to acquire and use.

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Advertising, Data Collection & Privacy
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The Gift that Keeps on Giving: New Jersey Backs Down a Little on Gift Card Requirements

New Jersey Gov. Chris Christie recently signed a bill amending the state’s gift card law to eliminate the consumer data collection requirements. The law previously required companies operating in New Jersey to maintain records of the name, address, and ZIP code of gift card purchasers. Much to the relief of retailers, the new bill eliminates this requirement.

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Class Action Defense
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Seller Beware: ‘No Refund,’ ‘No Cancellation,’ and ‘No Exchange’ Provisions in Certain Sales Contracts May Be Unenforceable

In 2013, David and Katina Spade (the Spades) purchased a mattress from Select Comfort Corp. (doing business as Sleep Number) that featured remote control operation of the height of the foot and head portions of the mattress (the Mattress). After taking delivery of the Mattress, the Spades experienced several technical problems with the remote control feature. Select Comfort and Leggett & Platt, Inc. unsuccessfully tried to repair the Mattress for almost a year. Shortly thereafter, the Spades revoked acceptance of the Mattress and requested that Sleep Number refund the full purchase price of the Mattress. Sleep Number did not do so.

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Class Action Defense
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Saks Wants Proposed Class Action over Return Policy Dismissed

Consumer class actions against fashion retailers are on the rise, and the most recent target is Saks Fifth Avenue. Currently pending in the Central District of California is a putative class action case brought by named plaintiff Jennifer Shaouli, who claims that Saks’ failure to prominently post its return and refund policies in its store violated California’s Consumer Legal Remedies Act and False Advertising laws.

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Advertising, Data Collection & Privacy
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Mary Kay Takes Aim at ‘Fraudulent Couponing Scheme’

The international skin care and cosmetics company Mary Kay is hitting back against what it is calling a “fraudulent couponing scheme” operated by the online digital coupon marketplace, RetailMeNot. Earlier this month, Mary Kay filed a federal lawsuit against RetailMeNot (RMN) alleging that RMN’s online coupon business violates federal trademark and advertising laws, as well as federal and state unfair competition laws.

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Intellectual Property, Copyright
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When the Music Stops: NY Court of Appeals Limits Meaning of ‘Affiliate’

The New York Court of Appeals recently held in Ellington v. EMI Music, Inc. that the term “affiliates” in a copyright renewal agreement referred only to affiliates existing at the time of contract execution, reasoning that the contract did not expressly provide that the parties intended to bind future affiliates.

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Fashion Law Videos
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Fashion Counsel Executive Series: Diane von Furstenberg President and Anthony Lupo Discuss What's Next for the Brand

Diane von Furstenberg’s commitment to empowering women is integral to the brand’s DNA. When Diane was interviewed by Steven Colbert last fall, “[he] asked her what she would make for women to wear to work everyday, her answer was simple but powerful: ‘Confidence.’”

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Advertising, Data Collection & Privacy
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Dating App Stops Attempt at Native Advertising

What’s the News?

Tinder, a mobile dating application, recently removed an advertising campaign being conducted on the app by Gap, Inc. (Gap). Tinder claimed that the advertisements violated its terms of service, which provide that the app is for “personal use only.” This should serve as a reminder to businesses to read and ensure compliance with the relevant terms of service before engaging in advertising on social media platforms.

Background

Based on the variety of formats, different social media platforms allow for different types of advertising. Some platforms, such as Facebook, provide banner space that advertisers can purchase to engage in traditional advertising. Other platforms do not sell ad space, meaning that businesses must resort to what is known as “native advertising.” Native advertising utilizes the normal features of a social media platform to promote content. This is how Gap attempted to advertise on Tinder.

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Consumer Product Safety
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FDA Issues Warning Letter to L’Oreal for Skin Pigmentation Claims

Recently, the US Food and Drug Administration (FDA) issued a Warning Letter to L’Oreal USA for marketing its cosmetic products, “Rosalic AR Intense” and “Mela-D Pigment Control” (on the Internet website www.laroche-posay.us), with claims deemed by the FDA to be drug claims. The FDA’s Warning Letter to L’Oreal may signal that the Agency is once again closely scrutinizing personal care product marketing claims. The FDA last took aggressive enforcement action against cosmetic products back in 2012 when it issued similar Warning Letters to 8-10 cosmetics companies for marketing products with aggressive anti-aging performance claims. The FDA states in the L’Oreal Warning Letter that use of the below noted performance claims causes the products to be adulterated and misbranded under the Federal Food, Drug and Cosmetic Act:

Rosaliac AR Intense:

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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.