Skip to main content

Yes Means No Agreement to Arbitrate: Lack of Essential Elements of a Contract in Online Transactions

In a recent decision from the US Court of Appeals for the Ninth Circuit, Lee v. Intelius Inc., 9th Cir., No. 11-35810, 12/16/13, the Court held that an online consumer could not be compelled to arbitrate a class action because the essential elements of a contract were not present.

Impending Launch of .CLOTHING and Other Fashion-Related gTLDs: Is Your Company Prepared?

As you may have heard, we are on the verge of a vast expansion of the Internet. Currently, there are only about two dozen generic top-level domains (“gTLDs”), such as .com, .net, and .info. However, there will soon be more than 1,000 new gTLDs, many of which are relevant to companies in the fashion and luxury goods industries. For example, third parties have applied for the right to operate .clothing and .fashion as new gTLDs.

Fake But Loving It: Concern Growing Over False Reviews on Yelp

Companies are advised to thoroughly investigate the companies they hire to manage their online reputations and reviews to ensure that only truthful and accurate reviews and comments from actual consumers are posted online. A company that does not thoroughly investigate the companies they use could find themselves in violation of the Federal Trade Commission’s (FTC) Guides Concerning the Use of Endorsements and Testimonials in Advertising (the 'Guides'). The Guides set forth the principles that the FTC uses when evaluating testimonials and endorsements.

US and China Announce Results of First Joint Crackdown on Counterfeit Luxury Goods

Overcoming the challenges of fighting organized crime networks involved in industrial scale illicit trade and counterfeiting, international partnerships recently led to 6,000 arrests and the seizure of 24 million fake goods worth nearly $133 million US dollars during INTERPOL-led operations codenamed “Black Poseidon II” (Europe), “Etosha” (Africa), “Hurricane” (Asia), and “Pacific” (the Americas) in May and June. Seized goods included fake consumer electronics, DVDs, mobile phones, tobacco, and cooking oil.

Skechers Pays Up in “Shape-Up” Class Actions

July marked the latest milestone in the years-long legal proceedings related to Skechers USA, Inc.’s marketing and sale of toning shoes. On July 11, 2013, the Federal Trade Commission (FTC) announced that an administrator mailed 509,175 checks to consumers who bought various shoes that Skechers marketed through allegedly deceptive advertisements. (See the FTC announcement here.)

Smart Search Concepts Files Patent-Infringement Lawsuits Against Fashion Retailers

On June 7–8, 2013, patent-licensing entity Smart Search Concepts LLC filed nine similar patent-infringement lawsuits targeting fashion retailers Gap, JC Penney, Kohl’s, Macy’s, Neiman Marcus, and Nordstrom, among other defendants. According to the complaints, the fashion retailers infringe some or all of three patents directed to “on-the-fly” website searches. The accused websites allegedly infringe when their search tools combine keywords with menus to help users narrow product selections.

Court Denies Urban Outfitters’ Motion to Dismiss Navajo Nation’s Trademark Suit

On February 28, 2012, The Navajo Nation (Navajo Nation) sued Urban Outfitters, Inc. and its subsidiaries (Urban Outfitters) in the US District Court for the District of New Mexico for trademark infringement, dilution, unfair competition, false advertising, unfair practices and state trademark infringement, and violation of the Indian Arts and Crafts Act (IACA). Urban Outfitters filed a motion to dismiss the complaint, and on March 26, 2013, the court granted and denied the motion in part.

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.

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.