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
Communications, Technology & Mobile
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After SCOTUS Declines CDA Defamation Appeal, Yelp Gives Court 5 Star Rating

The Lead

The Supreme Court gave Yelp and other interactive computer service providers reason to celebrate recently when it quietly declined to hear an appeal of a case charging Yelp with defamation in connection with one of the consumer reviews posted on the site. In refusing to hear the appeal, the Court left in place a Fourth Circuit decision that held that interactive computer service providers like Yelp cannot be held legally responsible for information created and developed by third parties.
 

The Facts

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Fashion Law Videos, Intellectual Property
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Defending Design: How Fashion Brands Protect Products with Trade Dress

Fresh from the runway to the front pages of the internet, fashion designs are now instantly available for anyone to examine and copy. However, designers are not without legal protection. Fortune reports that major fashion brands like Tory Burch, Belstaff, Christian Louboutin, Hermès, and Alexander McQueen are successfully utilizing trade dress and design patent laws to defend and protect their creations from pirates.

In this episode of Fashion Counsel, partner Anthony Lupo reviews trade dress details with Intellectual Property partner Allan E. Anderson. The video covers defining trade dress from trademarks, how to establish trade dress and file for ultimate protection, and finally, how to defend against unwarranted action.

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Consumer Product Safety, Class Action Defense, Advertising, Data Collection & Privacy
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Nordstrom and Jeans Company Pay $4M to Settle “Made in USA” Claim

On Monday, November 30, 2015, Nordstrom and denim manufacturer AG Adriano Goldschmied filed a motion to approve a settlement in California federal court, agreeing to pay more than $4 million to settle a consumer class action suit that accused them of falsely labeling jeans as “Made in USA.” The settlement was agreed upon in October 2015 after over a year of intense litigation.
 
Plaintiffs brought the case against both the manufacturer, AG, and the retailer that sold AG jeans, Nordstrom, and alleged various claims under the California consumer protection laws and business and professions code. The class action claimed that AG jeans’ fabric, thread, buttons, rivets, and certain subcomponents of the zipper assembly were manufactured outside of the United States.
 

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Advertising, Data Collection & Privacy
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Is the Price Right? Nordstrom Facing Class Action Over “Compare At” Pricing

What’s the News?

A federal judge for the Southern District of California recently held in Branca v. Nordstrom, Inc. that a class action could proceed with claims that Nordstrom made deceptive savings claims at a Nordstrom Rack store. In particular, the plaintiff alleged violations of California state law, claiming that Nordstrom listed higher “Compare At” prices next to sale prices, when the items had never been offered at that higher price by Nordstrom or other retailers.
 

Background on the Case

 
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Labor & Employment
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Retailers Under Fire: Urban Outfitters Becomes Latest Chain to Settle Wage Dispute

Urban Outfitters, Inc. – the parent company of Urban Outfitters, Anthropologie, Free People, and BHLDN – recently settled an overtime wage and hour class action brought by one of its employees who alleged that he and others similarly situated were forced to work overtime without appropriate pay and that the Company violated a number of other California labor laws. Berry v. Urban Outfitters Wholesale Inc., N.D. Cal., No. 4:13-cv-02628. 
 

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Intellectual Property, Trademark, Advertising, Data Collection & Privacy
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District Court Gives Go-Ahead to Marilyn Monroe’s Estate on False Endorsement Claim

What’s the News?

A federal judge in the Southern District of New York recently held in A.V.E.L.A., Inc. v. Estate of Marilyn Monroe, LLC that the Lanham Act protects rights in a celebrity’s image long after his or her death. Specifically, the court determined that Marilyn Monroe’s estate could proceed with a Lanham Act false endorsement claim against a vintage collectibles licensor who was creating and marketing various products featuring images of the iconic celebrity. Notably, the court issued this holding over the licensor’s objection that the false endorsement claim was a “thinly veiled” attempt to enforce publicity rights, a separate type of claim not available under the Lanham Act.
 

The Legal Backdrop: Milton H. Greene Archives, Inc. v. Estate of Marilyn Monroe, LLC

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Consumer Product Safety
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Warranties Go Digital: Manufacturers Gain Flexibility with E-Warranty Act

The E-Warranty Act of 2015 was recently signed into law, amending the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act, to permit manufacturers and sellers of consumer products the option to post written warranties online, rather than on the product or accompanying printed material as is required under the current law. In passing this amendment, Congress explicitly noted that the electronic warranty option would not only provide an environmentally-friendly way to expand consumer access to relevant product information, but it would provide additional flexibility to manufacturers in terms of complying with labeling and warranty requirements.
 

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Fashion Law Videos
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Fashion's Philanthropy: How Brands Set-up Foundations to Give Back
In this episode of Fashion Counsel, partner Anthony Lupo talks with Finance partner Richard Newman about why and how a fashion company should set-up a non-profit entity for their charitable giving.
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Advertising, Data Collection & Privacy
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10 Steps to Mitigate A Data Breach Before It Happens

Many of the clients that we advise are nervous about data protection, cyber issues, and the privacy of their customers and employees. Who can blame them? Every day we read news about another privacy breach. Some of the companies that we counsel are light years ahead – talking coding strategies and testing for vulnerabilities – while others are trying to determine how to be compliant and implement internal protocols in response to a breach.

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International Corporate, Importation & Immigration
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Estee Lauder (Finally?) Wins Dismissal of Retailer’s Contract Termination Antitrust Claims

Has Estee Lauder built such significant brand value that a retailer is doomed if it cannot stock Estee Lauder’s products on its shelves? This is the question Duty Free Americas asked a federal appeals court to once again consider after both the district court and the appeals court said “no.” The courts’ decisions confirm that manufacturers usually are free to choose with whom they will deal, and who may be cut off.
 

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ABOUT ARENT FOX LLP

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.