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
International Corporate, Importation & Immigration
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C’est Toi Jeans USA - a Trademark or a Country of Origin Reference?

Why does it matter? This seemingly inconsequential distinction may mean the difference between being able to prominently display your embroidered brand trademark on your jeans and being required to place a large “Made in China” marking next to the embroidered brand trademark. This is exactly what US Customs and Border Protection (CBP) attempted to do to the jeans manufacturer JBLU, Inc., whose “C’est Toi Jeans USA” trademark had been in use, but not yet registered.
 

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International Corporate, Importation & Immigration
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CBP Issues Withhold Release Orders On Certain Imports Made By Forced Labor From China

US Customs and Border Protection has provided details on recent changes to the law that prohibits imports made of convict, forced, or indentured labor. The Trade Facilitation and Enforcement Act of 2015 repealed the “consumptive demand” exemption to the ban on imports made by “forced labor.” The repeal became effective on March 10, 2016. 
 
Prior to the changes, there had been an exemption to the ban if goods were not mined, produced or manufactured in such quantities in the United States as to meet the consumptive demands of the United States.
 

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Advertising, Data Collection & Privacy
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J Crew Hit With Class Action over Online Factory Store Prices

What’s the News?

J Crew Group Inc. was recently hit with a nationwide class action lawsuit alleging that the clothing retailer offers fictitious sales on the J Crew Factory store website. According to the complaint, while items throughout the site are offered at “sale” prices, they are never actually sold at the higher “valued at” price listed to advertise potential savings. Asserting that the company’s pricing strategy violates dozens of state consumer protection laws, the complaint seeks compensatory and punitive damages, as well as injunctive relief. This is the most recent case in a litany of class actions attacking allegedly “phantom” sale prices. It serves as an important reminder to retailers nationwide to be careful when advertising sale prices and when using price comparisons.

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Consumer Product Safety, E-Commerce, Online Distribution & Fulfillment, Intellectual Property, International Corporate, Importation & Immigration, Labor & Employment
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Arent Fox Speaks to New Fashion Designers on Setting Up Their Brands

On April 26, 2016The Fashion Institute of Design & Merchandising (FIDM) invited Anthony Lupo, chair of Arent Fox's fashion law practice, to give students and alumni a presentation about the specific legal and business challenges that designers and retailers of fashion and luxury products face in an increasingly globalized and Internet-based world.

Following the presentation, FIDM students and alumni will have the opportunity to participate in a fashion law clinic. These one-on-one meetings with Mr. Lupo and his team are designed to assist new designers with their legal fashion needs and strategy.

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International Corporate, Importation & Immigration
alert
CBP Issues Withhold Release Orders On Certain Imports Made By Forced Labor From China

US Customs and Border Protection has provided details on recent changes to the law that prohibits imports made of convict, forced, or indentured labor. The Trade Facilitation and Enforcement Act of 2015 repealed the “consumptive demand” exemption to the ban on imports made by “forced labor.” The repeal became effective on March 10, 2016. 
 
Prior to the changes, there had been an exemption to the ban if goods were not mined, produced or manufactured in such quantities in the United States as to meet the consumptive demands of the United States.
 

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Intellectual Property, Trademark
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House of Cards Producer Sued over Trademark Licensing Dispute

What’s the News?

The producer of popular Netflix television series “House of Cards” has been sued in federal court on claims of trademark infringement for its use of the trademark HOUSE OF CARDS. See D2 Holdings LLC v. MRC II Distribution Co., L.P., et al. 1:16CV10453 (D. Mass. March 3, 2016). The plaintiff, D2 Holdings LLC, and its predecessor-in-interest have owned a federal registration for HOUSE OF CARDS since 2007, years before the popular political drama of the same name aired in 2013. While defendant MRC II Distribution Company L.P. has been using the title “House of Cards” since the show first aired, the company recently licensed several entities to use the mark “HOUSE OF CARDS” on various products, including slot machines and clothing items – a decision that led D2 to file suit. 

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E-Commerce, Online Distribution & Fulfillment
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Winds of Change: Court Grants Summary Judgment for Plaintiff in Website Accessibility ADA Claim

Last September, we published an alert warning retailers of a looming expansion in the reach of Title III of the Americans with Disabilities Act that would impose requirements on e-commerce websites to make themselves more accessible to users with a wide variety of disabilities. While the US Department of Justice has yet to promulgate regulations specifying those requirements, enforcement actions by DOJ and threatened class action lawsuits by a number of plaintiffs’ law firms all point towards the likelihood that retailers' websites will have to meet Level AA of the Web Content Accessibility Guidelines v. 2.0.

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Advertising, Data Collection & Privacy
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FTC Targets Retailers Offering Tweets for Pay

Social media disclosures may cause heart palpitations for advertisers and copywriters, but the Federal Trade Commission isn’t backing down. A recent settlement involving Lord & Taylor provides another important reminder that the FTC is scrutinizing social media campaigns and that proper disclosures are required, even if you only have 140 characters to do it in.

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Real Estate & Leasing, E-Commerce, Online Distribution & Fulfillment, Fashion Law Videos, Advertising, Data Collection & Privacy
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Super Bowl Ads to Licensing Partnerships: Anthony Lupo and Camuto Group SVP Jessica Cardon Discuss Top Retail Trends
In this episode of Fashion Counsel, partner Anthony Lupo talks with Jessica Cardon, Senior Vice-President of Camuto Group, about balancing the various aspects of a comprehensive footwear company before a live audience at Bisnow’s 6th Annual NYC Retail Summit Event.
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Intellectual Property, Trademark
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JC Penney Quickly Settles Suit With Burberry Over Alleged Counterfeit Check Pattern

A case filed by Burberry Ltd. earlier this year against JC Penney Corp Inc. in the Southern District of New York for trademark infringement, and related state and federal unfair competition claims over JC Penney’s use of a checkered pattern on coats appears to have quickly been resolved. Burberry Ltd. et al., v. J.C. Penney Corp. Inc., No. 1:16-cv-00982 (S.D.N.Y. 2016). In addition to state and federal trademark infringement, Burberry also asserted the more serious claims of trademark counterfeiting, which carries with it statutory penalties.
 
The check patterns at issue were as follows:
 
Burberry Check Pattern:

JC Penney Scarf Coat:

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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.