Fashion Cases

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On January 25, 2021, President Joe Biden issued an Executive Order entitled “Ensuring the Future is Made in America by All of America’s Workers,” which directs a broad review and strengthening of governmental procurement and financial assistance policies and regulations which require or provide a preference for goods, products or materials produced in the United States.[1]  While US content must be disclosed on automobiles, textile, wool and fur products sold in the US[2] and there is no law which requires a company to disclose the amount of US content or that a product is manufactured in the US, manufacturers and retailers who make claims about the amount of US content in their products must comply with the  “MADE IN USA” Enforcement Policy Statement issued by the Federal Trade Commission (“FTC”).[3]  The Enforcement Policy Statement applies to all products advertised or sold in the US, except those specifically subject to country-of-origin labeling requirements and “MADE IN USA” claims, express and implied, that appear on products and labelling, advertising and promotional materials and other forms of marketing including digital marketing and social media.[4]  In order to make an unqualified claim that a product is “MADE IN USA”, a manufacturer or marketer should have competent and reliable evidence (“a reasonable basis”) to support a claim that the product is “all or virtually all” made in the US.[5]
Continue Reading Seeking to Stop Deceptive ‘MADE IN USA’ Claims, the FTC Takes Action Against Brandnex

On November 5, 2019, the United States Federal Trade Commission (“FTC”) issued a guide entitled “Disclosures 101 for Social Media Influencers”[1] and a video “Do you endorse things on social media?” to alert influencers to the laws governing endorsement or recommendation of products or services and provide social media influencers with “tips on when and how to make good disclosures.”[2] The FTC’s written guide states that “[a]s an influencer, it’s your responsibility to make these disclosures, to be familiar with the Endorsement Guides, and to comply with laws against deceptive ads.”[3] The guide explains to influencers that disclosures must be made when an influencer has a “material connection,” that is “any financial, employment, personal, a family relationship with a brand” and that receiving “free or discounted products or other perks” requires a disclosure.[4] In addition, the FTC notes that “tags, likes, pins, and similar ways of showing you like a brand or product are endorsements.”[5] The FTC guide also instructs influencers that “[i]f posting from abroad, U.S. law applies if it’s reasonably foreseeable that the post will affect U.S. consumers. Foreign laws might also apply.”[6] The FTC notes that disclosures must be in simple and clear language that is placed “so it’s hard to miss” and should be placed with the endorsement itself. Disclosures that “appear only on an ABOUT ME or profile page, at the end of posts or videos, or anywhere that requires a person to click MORE” will not be sufficient.[7] The FTC gave the following guidance with regard to endorsement posts in photographs, video and live streaming:
Continue Reading FTC’S New “Disclosures 101” Publication And Video Is A Shout Out To Influencers

In August 2015, the United States Sixth Circuit Court of Appeals held in Varsity Brands, Inc.. v. Star Athletica, LLC, 799 F.3d 468 (6th Cir. 2015), that the stripes, chevrons and other visual elements that appear on a cheerleading uniform could be protectable under United States copyright law.  While clothing is generally considered to be the kind of “useful item” that cannot be protected by copyright law, the Sixth Circuit held that the cheerleader outfit design is conceptually separable from the utilitarian aspects of the uniform.  “Because we conclude that the graphic features of Varsity’s designs can be identified separately from, and are capable of existing independently of, the utilitarian aspects of cheerleading uniforms, we hold that Varsity’s graphic designs are copyrightable subject matter,” Circuit Judge Karen Nelson Moore wrote for the majority.  A copy of the Sixth Circuit decision can be found here.
Continue Reading Rah! Rah! Sis Boom Bah! Supreme Court to Decide Whether Copyright Act Protects Cheerleader Uniform Designs

Many consumer-facing businesses have learned to identify high-risk Prop 65 targets:  soft, flexible plastics; faux and colored leathers; and any kind of brass or metal that may contain lead or other heavy metals.  But businesses need to take action to avoid Prop 65 liability based on a new culprit: bisphenol-A (BPA) that may be lurking in your cash register receipts and other thermal papers. 
Continue Reading A Proposition 65 Violation May Be Lurking in Your Cash Register Receipt

Recent efforts by the Federal Trade Commission (“FTC”) to regulate the use of native advertisements — a popular and growing advertising tool– have resulted in the first enforcement action. On March 15, 2016, the FTC settled charges brought against New York retailer Lord & Taylor, LLC (“Lord & Taylor”), arising from Lord & Taylor’s March 2015 social media campaign targeted at 18 to 35-year old women its launch of its new Design Lab Collection, signaling the FTC’s intention to more heavily regulate the use of social media influencers to advertise fashion apparel.  The FTC complaint alleged that Lord & Taylor promoted the launch of the Design Lab Collection and a featured Design Lab paisley dress design through native advertising, including a Lord & Taylor-sponsored article in the online publication Nylon, and a Nylon Instagram post that was approved by Lord & Taylor.  The FTC complaint alleged that Lord & Taylor paid fifty online fashion “influencers” to post Instagram pictures of themselves wearing the same Design Lab paisley dress.  A copy of the consent order and complaint are attached. The exhibits to the complaint can be found here.
Continue Reading The FTC Cracks Down On March 2015 Lord & Taylor Social Media Launch: Native Advertisers Beware!

In the wake of 2016, Jay-Z faces an $18 million lawsuit for his failure to publicly appear and promote his signature fragrance line, as he was contractually obligated. 2009 marked the start of a budding licensing relationship between Parlux Fragrances and Hova, wherein Parlux courted the rapper with common stock offers and warrant transfers to win his affections for a fragrance deal. Finally in 2012, Mr. Carter agreed to an exclusive license to his name and likeness for Parlux’s use in fragrances and other beauty products. The successful 2013 launch of the GOLD Jay-Z fragrance promised growth for the future relationship. However, things began to smell sour once Jay declined to meet his contractually obligated minimum number of public appearances in support of the fragrance and Parlux sought Jay-Z’s assistance in developing flanker fragrances to no avail. Parlux cites a number of declined appearances and attempts to communicate with Jay-Z and his representatives, which they claim are the basis for three separate counts of breach of contract and one count of breach of implied duty of good faith and fair dealing.[1] Parlux seeks rescission, which entails the return of 300,000 shares of Perfumania common stock, 800,000 Perfumania warrants, and $2 million in guaranteed royalties, along with a declaratory judgment, and $18 million in damages.[2] The New York Supreme Court is left to decide whether or not these communication breakdowns amount to one of Jay-Z’s 99 problems, this one with an $18 million price tag.
Continue Reading He’s got 99 Problems, But a Breach Might NOT be One

On Monday, June 1, 2015, the United States Supreme Court reversed a judgment of the United States Court of Appeals for the Tenth Circuit which had granted Abercrombie & Fitch (“Abercrombie”) summary judgment in a religious accommodation case brought by a job applicant who wore a headscarf (a hijab) to an interview, but did not mention her religion or request an exception to Abercrombie’s dress code.  The Court’s 8-1 decision in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc. rejected the Tenth Circuit’s holding that, to prove discrimination under Title VII of the Civil Rights Act (“Title VII”), it is an applicant’s burden to advise an employer of a religious practice necessitating accommodation.  Instead, the Court found that a job applicant need only demonstrate that a prospective employer’s desire to avoid providing a religious accommodation was a motivating factor in its decision not to hire, not that the employer actually knew of the need for an accommodation.   
Continue Reading Supreme Court Sides with EEOC in Abercrombie & Fitch Hijab Case

By Alona G. Metz

In the recent landmark case of Louis Vuitton Malletier, S.A. v. Akanoc Solutions, Inc., 658 F.3d 936 (9th Cir. 2011),[1] the Court of Appeals for the Ninth Circuit held that a web-hosting company that owned and operated servers was liable for contributory copyright and trademark infringement when it failed to take steps to curtail alleged infringement committed by Chinese websites that used its servers. Louis Vuitton sued Akanoc Solutions, Inc. (“Akanoc”), Managed Solutions Group, Inc. (“MSG”), and Steven Chen (the owner of both companies) for contributory copyright and trademark infringement under the Copyright and Lanham Acts, respectively. MSG leased servers, bandwidth, and IP addresses to other companies, such as Akanoc, who then operated the servers and otherwise ran the business. Louis Vuitton alleged that some of Akanoc’s China-based customers directly infringed on Louis Vuitton’s trademarks and copyrights. Louis Vuitton sent the defendants eighteen Notices of Infringement documenting the infringements occurring on websites hosted by defendants, yet the defendants were unable to identify any action taken in response to the notices sent by Louis Vuitton and the websites continued to operate. Louis Vuitton alleged that defendants had actual knowledge of the website’s activities, that defendants knowingly avoided learning of the full extent of infringing activities, and that defendants knowingly enabled the infringing conduct by hosting the websites and permitting them to display the counterfeit products.Continue Reading Louis Vuitton Sets A New Standard In Federal Trademark And Copyright Law

In Feder v. Williams-Sonoma Stores, Inc, the United States District Court for the District of New Jersey joined the New Jersey Superior Court in weighing in on the issue of whether a retailer violates consumer privacy state law by requesting a customer’s zip code at the point of purchase.  Feder was brought by the same plaintiff’s lawyers and with claims similar to those in the state court case Imbert v. Harmon Stores, Inc.(Bed, Bath & Beyond). Imbert was decided last month, but without any written decision, and permitted that case to proceed past the pleading stage. The District Court in Feder, however, issued the first written opinion under the New Jersey statutes, finding that allegations that a zip code was verbally requested could not support a claim under New Jersey law.
 Continue Reading ZIPped Back Up: Williams-Sonoma Gains Federal Dismissal Of New Jersey Consumer Privacy Claim in Feder

A New Jersey state trial court has initially weighed in on the issue of whether a retailer violates state law by requesting a customer’s zip code at the point of purchase.  In a case fashioned after the California Supreme Court’s decision in Pineda v. Williams-Sonoma, 51 Cal.4th 524 (Feb. 10, 2011), New Jersey Superior Court Judge Stephan Hansbury has denied a motion to dismiss brought by Harmon Stores, Inc. (Bed, Bath & Beyond), finding that the plaintiff Robert Imbert adequately pled a claim for violation of New Jersey’s Truth in Consumer Contract, Warranty and Notice Act, N.J.S.A. 56:11-17 (“TCCWNA”).   The Court’s ruling allows plaintiff to proceed beyond this initial stage, but no liability has been found.
 Continue Reading UnZIPped in New Jersey?

As we previously reported here, Christian Louboutin ("Louboutin") filed a lawsuit against Yves Saint Laurent ("YSL") in early April, alleging that YSL and its affiliated companies violated Louboutin’s red sole trademark by selling women’s shoes with red uppers and outsoles alleged to be virtually identical to Louboutin’s red sole trademarks.
 Continue Reading YSL Fights Back By Seeking To Cancel Louboutin’s Red Sole Trademark