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.)
Advertising, Data Collection & Privacy
Arent Fox has developed for its fashion and luxury goods clients processes for the collection of customer data at store fronts and via the Internet. In this regard, we have assisted clients with the implementation of global privacy policies that allow for the transfer of customer and employee data across borders and for the use of that data for all types of purposes, from internal uses to marketing to data mining. On the advertising side, we review our clients’ advertisements for claims and comparisons. Our attorneys have also worked with our clients in global sweepstakes and contests to gather consumer data and promote their brand.
Selecting where to source manufacturing of fashion goods is not dependent on price alone. Companies looking to source need to be aware of consumer perceptions when selecting a sourcing territory. Perception worries might not carry the same importance to all companies, but it is undeniable that businesses make decisions based on their clientele’s views on sourcing locations.
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.
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.
On March 5, 2013, Bassil A. Hamideh (Hamideh), a model-turned-attorney, filed a lawsuit against Dolce & Gabbana S.r.L. (D&G) for the unauthorized reuse of his image appearing in photographs taken in 2002 for a D&G advertising campaign. Hamideh seeks actual, statutory, and punitive damages, injunctive relief, restitution, disgorgement of profits, a constructive trust, attorneys’ fees and costs, and litigation costs.
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.
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.
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.