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
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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International Corporate, Importation & Immigration
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Mitigating Risk and Protecting Your Company’s Brand in the US Marketplace

Recent Developments in US Import Requirements

In September 2014, Arent Fox reported about a US court case with which every corporate officer of a company doing business in the United States should become familiar. The decision involves responsibility for compliance with US import regulations which, heretofore, has typically been relegated to a company’s customs and logistics divisions. The Trek Leather decision rendered by the US Court of Appeals for the Federal Circuit found that a corporate officer of an importer of record could be personally liable for gross negligence penalties where the importer understated the value of the goods.

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Fashion Law Videos, Labor & Employment
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When Employees Talk: Key Issues for the Fashion Industry & Social Media

Last fall, the New York Times reported, "With the rise of social media, many business owners have sought to control what their employees post on the various social networks." However, recent litigation proves that employers should tread carefully. The National Labor Relations Act gives every employee the right to engage in protected concerted activity, which includes complaints made from employees to other employees made on social media.

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Labor & Employment
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American Idol Winner Wants Out from Contract with Show’s Producer; Claims Producer Acted as a ‘Talent Agency’

American Idol Season 11 winner Phillip Phillips has filed a petition with the California Labor Commissioner, arguing that 19 Entertainment, Inc. (the producer of the hit talent show) unlawfully acted as a “talent agency” in contravention of the California Talent Agencies Act (CTAA).

Under the CTAA, only licensed talent agencies may procure jobs — such as media appearances — for its clients, a restriction that 19 Entertainment allegedly flouted when it engaged Phillips for — or, according to Phillips, in many instances forced him to accept — a number of high-profile media appearances, including those on The Tonight Show and The Today Show. According to the petition, American Idol contestants must enter into a number of agreements with 19 Entertainment to appear on the program, including a recording agreement, a management agreement, and a merchandising agreement.

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Consumer Product Safety
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California Proposes New Prop-65 Warning Requirements

On January 12, 2015, California’s Office of Environmental Health Hazard Assessment (OEHHA) issued a proposed regulation to revise the required warning statement for products containing chemicals listed by the state under Proposition-65 (Prop-65). A link to the Prop-65 proposal can be found here.

In part, the proposal would require Prop-65 warnings to specify certain listed chemicals by name. Under the proposal, OEHHA would also establish a new website that would provide detailed information for the public about exposures to Prop-65 listed chemicals. The proposed revisions to Prop-65 warning requirements are the first substantive revisions to the law in over 30 years.

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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.