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
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Breaking (Up) Bad: Watch-outs for Brand Owners Faced with Ex-Licensee's Trademark Use

A series of recent decisions have heightened the standard for obtaining preliminary injunctive relief for trademark infringement. This trend presents unique challenges for brand owners seeking to enjoin unauthorized “holdover” use of a trademark by former franchisees or licensees. This situation commonly arises when a franchisee or licensee continues using a franchisor or licensor’s trademarks following termination of a franchise or license agreement.
 
Under the test for preliminary injunctive relief in most jurisdictions, a plaintiff must establish:

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Press Releases, Intellectual Property, Copyright
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Fashion Law Institute and Arent Fox File Amicus Brief on Behalf of Designers in Supreme Court Copyright Case

New York, NY — On September 21, the Fashion Law Institute at Fordham filed an amicus brief with the Supreme Court of the United States in the matter of Star Athletica LLC v. Varsity Brands, Inc., in support of continuing copyright protection for designs incorporated into useful articles, including the cheerleader uniform designs at issue in the litigation.
 

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International Corporate, Importation & Immigration
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US Importers, Managing Director, and Wholesale Customer Face Monetary Damages in Two Recently Unsealed False Claims Act Cases

The False Claims Act imposes liability on persons and companies who defraud the government of monies, whether it is by receiving monies based on false statements or material omissions, or avoiding the payment of monies through false statements or omissions. The statute permits both private parties (whistleblowers) and the government to bring actions against the perpetrators of such fraud in order for the government to collect damages, a portion of which will be paid to the whistleblower, if one is involved.

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Labor & Employment, Class Action Defense
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Please Wait While I Check Your Bag: California Court Certifies Nike Bag-Check Class Action & Converse Workers Seek Class Certification in Similar Case

Long lines and waiting for security inspections are the new normal not only at airports and stadiums, but also at office buildings and theatres—just to name a few places. According to the plaintiff in Rodriquez v. Nike Retail Services, Inc., N.D. Cal. Case No. 5:14-cv-01508, he and other Nike retail employees also had to wait for security inspections when they left for breaks or after their shifts at Nike’s retail stores. The plaintiff claims that he and other employees were required to wait for such inspections after clocking out, and he and a class of Nike retail employees should have been, but were not, paid for the time spent waiting. 
 
On August 19, 2016, the Northern District of California granted the plaintiff’s motion for class certification and certified a class of all current and former non-exempt Nike retail store employees from February 25, 2010, to the present. Opposing class certification, Nike made three overarching arguments:

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Corporate
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The New Partnership Audit Rules—When to Amend Your Partnership or LLC Agreement

The new partnership tax audit rules enacted by Congress on November 2, 2015 could have a dramatic impact on partnerships and their partners (including limited liability companies taxed as partnerships (“LLCs”) and their members). The new rules will apply to audits of tax returns for tax years beginning after December 31, 2017. 

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Consumer Product Safety
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FDA Enforcement Against Cosmetics Continues at Record Pace in 2016
  • FDA has issued a record high 19 Warning Letters to cosmetics/personal care product companies in 2016.
  • Companies should promote cosmetics on the Internet with the understanding that FDA may be actively monitoring company websites.
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Consumer Product Safety
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Congress Considering Legislation Giving FDA Additional Regulatory Authority Over Cosmetics and Personal Care Products
  • It is unclear whether Congress and the President will come to agreement and move forward this year on cosmetics and personal care products legislation.
  • Rather, activity this year may lay the groundwork for action by the next Congress in 2017.
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Trademark
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Converse Loses Its Midsole Amidst ITC Trademark Battle

What Made News?

Last month, the US International Trade Commission issued a decision invalidating a trademark for Converse’s iconic Chuck Taylor sneaker. Although Converse did win some of its claims, the ITC decision overall represents a potentially significant setback for Converse after the company took aggressive action to try to stop the sale of shoes that Converse claimed infringed its rights in the Chuck Taylor design. 

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Advertising, Data Collection & Privacy
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What Global Fashion Companies Need to Know About the GDPR If They Collect EU Personal Data

What’s New? (The GDPR.)

Fashion and luxury goods companies need to take heed of yet another data protection regulation. This one could substantially impact them if they collect, process, or transfer EU individuals’ personal data, or plan to do so at some point soon. Specifically, the General Data Protection Regulation (GDPR) is the EU’s new data protection law, recently and finally entered into law. It replaces the old EU data protection regime established by the Data Protection Directive (95/46/EC). The GDPR lays out requirements for organizations that process EU residents’ data and generally provides people increased control over their personal data.

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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.