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
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CFPB: Get Proper Consent for Recurring Debit Transactions, or Else!

As 2016 gets underway, companies should be mindful that regulators are paying close attention to automatic recurring debit transactions. If reviewing your recurring debit transaction consent procedures was not already one of your New Year’s resolutions, it may be worth making it a late addition.

What’s New?

The Consumer Financial Protection Bureau (CFPB) signaled in a compliance bulletin late last year that it is scrutinizing automatic recurring debit transactions to ensure that companies are obtaining proper consent from consumers. Such transactions are regulated by the Electronic Fund Transfer Act (EFTA) and its implementing regulation, Regulation E.

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Intellectual Property, Trademark
ruling
Arent Fox Wins Lawsuit Protecting Diesel From Websites Selling Counterfeit Products

Washington, DC — Earlier this month, Arent Fox LLP secured a victory for Diesel S.p.A. after a federal court granted default judgement in a lawsuit the Italian clothing company filed against nine John Doe defendants operating 83 cybersquatting websites that sold counterfeit products appearing to carry the internationally recognized label. In granting the default judgment, the US District Court for the Southern District of New York awarded $2 million in damages and ruled that by using Diesel’s trademark in the domain name, the websites created the false impression they were authorized to sell genuine Diesel goods.
 

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Deal or No Deal? Class Action Alleges Macy’s Offered Misleading Sale Prices

What’s the News?

Macy’s, Inc. and subsidiary Bloomingdale’s, Inc. were recently served with a class action complaint alleging that the retail chains misled consumers with a “phantom pricing scheme” that inflated the savings available on items marked for sale. According to the complaint, the stores listed artificially high “regular” prices on “sale” items, increasing, by comparison, the savings that consumers believed they were receiving. This is the latest of several recent class action lawsuits attacking retail pricing strategies, and it serves as a reminder to retailers nationwide to be careful when using price comparisons.

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Advertising, Data Collection & Privacy
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Is It or Isn’t It? FTC Issues Guidance to Companies on Native Advertising

The Federal Trade Commission recently issued its long-anticipated guidance on native advertising. While the policy statement and its related guidance are new, the FTC emphasized that it has been regulating native advertising under Section 5 of the FTC Act since 1967 and that this policy document and guidance is a summary of the principles that it has developed over the years. While the FTC has been regulating native advertisements for decades, the issuance of this guidance indicates that the FTC will be making regulation of native advertising a priority in 2016.
 
Native advertising – as defined by the FTC – is advertising that matches the design, style, and behavior of the digital media in which it is disseminated. The main problem with respect to native advertising arises when the content is formatted in a way that suggests or implies it is not an advertisement.

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Communications, Technology & Mobile, E-Commerce, Online Distribution & Fulfillment
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Better Off Without It: FTC Telemarketing Sales Rule Amended to Ban Abusive Payment Methods

The Federal Trade Commission (FTC) amended its Telemarketing Sales Rule at the end of 2015 to ban certain forms of abusive payment methods. The amended rule now bans four previously allowed methods of payment that the FTC determined were commonly used in abusive telemarketing operations.  The banned forms of payment include: remotely created checks, remotely created payment orders, cash-to-cash money transfers, and cash reload mechanisms. The amendments also require that a description of the goods or services purchased must be included in the verification recording of a consumer’s agreement to purchase them.

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Intellectual Property, Trademark
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Testing “First Sale” Waters: Costco Faces Trademark Suit Over Sale of Fashion Swimwear Brand

Costco is defending a trademark infringement lawsuit over its sale of Anne Cole swimwear, an iconic line of women’s swimwear that has been sold in the US for over 30 years. The suit will likely turn on the scope of the “first sale” doctrine—which shields resellers of genuine trademarked products from liability for trademark infringement—and whether the manner in which Costco displays the products is likely to mislead consumers as to their source.
 

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Intellectual Property, Trademark
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Empire vs. EMPIRE: Fox Defends Its Hit Television Series Against Lanham Act Claims

What’s the News?

Twentieth Century Fox Television recently filed a motion for summary judgment in a dispute with record label Empire Distribution, Inc. over the name of Fox’s popular television series Empire. Empire Distribution has alleged that Fox’s use of “Empire” in the show’s title and on its soundtracks constitutes trademark infringement under the Lanham Act, but Fox claims that it is shielded from any such claims by the broad protection afforded to “expressive works” under the First Amendment.
 

Background on the Dispute

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Advertising, Data Collection & Privacy
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FTC Says Retailers Bamboozled Customers with Misleading “Bamboo” Products

What’s the News?

The Federal Trade Commission has a reached a settlement agreement with several major retailers, including Nordstrom, Bed Bath & Beyond, and JCPenney, over claims that they improperly labeled and advertised rayon products as being made of bamboo. According to the FTC, rayon—a chemically manufactured fiber that is sometimes created from bamboo—is not the same as bamboo, making the companies’ “bamboo” claims improper. In addition to injunctive relief, the companies have agreed to pay over $1 million dollars under the settlement. 

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Intellectual Property, Copyright
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“World of Warcraft” Creator Takes Battle to Court over Game’s Characters

What’s the News?

A federal judge in the Northern District of California recently dismissed a complaint in which video game producers claimed that characters from their games had been misappropriated by competing developers, in violation of copyright law. While characters are, in some cases, entitled to copyright protection, the court held that plaintiffs in such cases must state with considerable specificity which characters were allegedly infringed, and why those characters are copyrightable. General allegations of idea theft, the court explained, will not survive a motion to dismiss. 
 

Background

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Labor & Employment
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New Year, New Rules: Seven Key Things to Know about Wage and Hour Laws for 2016

Employers should be aware of several important changes to federal and New York wage and hour laws, effective December 31, 2015 and January 1, 2016. Additionally, the New York Wage and Deduction Law has been extended to November 6, 2018. Changes to federal and state laws include:

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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.