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
Intellectual Property, Trademark, Advertising, Data Collection & Privacy
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Trademark Trial and Appeal Board Affirms Rejection of Lululemon’s Oversized Logo As Ornamental

The US Patent and Trademark Office (PTO) Trademark Trial and Appeal Board (TTAB) affirmed a decision rejecting Lululemon Athletica Canada Inc.’s (Lululemon) trademark application for a large version of its logo as used on the front of hooded sweatshirts, jackets and coats. While the TTAB recognized that the appearance of oversized logos on clothing and fashion items was becoming more frequent and could be protectable, it held that Lululemon failed to provide sufficient evidence to meet the standards for registrability.

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Intellectual Property, Copyright
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Federal Jury Verdict Finds Aeropostale Infringed Copyrights on Floral Textile Designs

A California federal jury determined two floral designs manufactured into garments imported by Ms. Bubbles Inc. and sold in Aeropostale stores, infringed copyrighted designs of a snowflake and a rose owned by Plaintiff LA Printex. The Defendants argued the textile designs lack valid registered copyrights, were never marketed and were created during the litigation, however, after two hours of deliberation, the federal jury found Aeropostale infringed the textile designs and there was willful infringement by Ms. Bubbles. The verdict is in favor of the Plaintiff on all counts in the liability phase of the trial.

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Intellectual Property, Copyright, International Corporate, Importation & Immigration
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Alleged Software Piracy by Overseas Fashion Firms Gives Rise to Unfair Competition Claims in California

The California Attorney General recently filed two lawsuits in state court against Chinese and Indian apparel manufacturers, accusing the companies of obtaining an unfair competitive advantage over US firms through the use of pirated software. See People of the State of California v. Ningbo Beyond Home Textile Co., Ltd., No. BC499771 (Cal. Super. Ct. Jan. 24, 2013); People of the State of California v. Pratibha Syntex Ltd., No. BC499751 (Cal. Super. Ct. Jan. 24, 2013). The twin complaints seek, among other things, injunctions barring the defendants from distributing their products in the State of California until they can certify their compliance with the licensing requirements of all production-related software programs, as well as civil penalties of $2,500 for each violation of Section 17200 of the California Business and Professions Code and payment for the costs of the lawsuits.

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Intellectual Property, Advertising, Data Collection & Privacy
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The Client Strikes Back: Defamation Cases in California and Virginia Illustrate Dangers of Suing Over Critical Internet Reviews

Two recent defamation cases highlight the risks involved in suing former customers or clients for defamation based on the posting of negative online reviews on Internet review websites such as AngiesList.com and Yelp.com. Not only does a defamation claim run the risk of igniting free speech concerns in the context, but filing a weak claim could expose a company to liability in states that have strong anti-SLAPP statutes.

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Lululemon Settles Patent Infringement Suit with Calvin Klein

Lululemon athletica canada inc. (lululemon) and Calvin Klein, Inc. (Calvin Klein) have agreed to settle their patent infringement lawsuit involving the design of yoga pants.

As previously discussed by Arent Fox, on August 13, 2012, lululemon sued Calvin Klein before the U.S. District Court for the District of Delaware for direct and indirect willful infringement of lululemon’s yoga pant design patents. lululemon asserted that Calvin Klein’s sale of certain yoga pants that incorporated similar design elements as those in lululemon’s patents, constituted direct and indirect patent infringement. The terms of the settlement agreement are confidential.

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Lululemon Enters Warrior Pose: Files Patent Infringement Lawsuit Against Calvin Klein Over Yoga Pant Design

On August 13, 2012, lululemon athletica canada inc. (“lululemon”) filed an action before the U.S. District Court for the District of Delaware against Calvin Klein, Inc. (“Calvin Klein”) and G-III Apparel Group, Ltd. (“G-III”) for direct and indirect willful infringement of lululemon’s design patents for certain yoga pants.

Founded in 1998 in Vancouver, British Colombia, lululemon is an international retailer of technical athletic apparel for yoga, running, dancing, and other activities. Along with a variety of products, lululemon sells a yoga pant under the brand name Astro Pant™. The pant includes a number of features such as “luon, four-way stretch and moisture wicking, [and a] gusset designed for greater range of movement and comfort.” The company owns three US. design patents covering the features embodied in the Astro Pant™.

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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.