Retail & Consumer Products Law Observer

Retail & Consumer Products Law Observer

Legal Insight for the Retail and Consumer Products Industry

Category Archives: IP/Brand Protection

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A-F-F-I-R-M-E-D! The Supreme Court Upholds Copyright Protection for Cheerleading Uniform Designs

Posted in IP/Brand Protection
UPDATE to our September 2015 post On March 22, 2017, a 6-2 Supreme Court found Varsity Brands’ designs on cheerleading uniforms to be copyrightable, holding that “an artistic feature of the design of a useful article is eligible for copyright protection if the feature (1) can be perceived as a two- or three-dimensional work of… Continue Reading

UPDATE: R-E-V-E-R-S-A-L Spells Reversal! The Sixth Circuit Holds Varsity Brands’ Cheerleading Uniform Designs to be Copyrightable.

Posted in IP/Brand Protection
U-P-D-A-T-E! On May 2, 2016, the U.S. Supreme Court granted certiorari to address the question: “What is the appropriate test to determine when a feature of a useful article is protectable under § 101 of the Copyright Act?”. The answer to this question may have far-reaching implications for the retail and fashion industries – stay… Continue Reading

Join C&M and other legal experts for the FBA’s Fashion Law Conference

Posted in Advertising & Product Risk Management, Antitrust & Claims Recovery, Consumer Class Action, International Trade, IP/Brand Protection, Privacy & Data Protection
On February 12, 2016, the Federal Bar Association will host a day-long Fashion Law Conference at Parsons School of Design (Starr Foundation Hall in the New School’s stunning new University Center) on the last day of New York Fashion Week! Speakers include in-house counsel from The Estee Lauder Companies, Inc., Tiffany & Co., New York &… Continue Reading

Make a Deal Like Mike – Michael Jordan Settles Two Right of Publicity Lawsuits

Posted in Advertising & Product Risk Management, IP/Brand Protection
Michael Jordan has settled two high-profile right of publicity lawsuits with two now-defunct grocery chains – Jewel Food Stores and Dominick’s Finer Foods.  In August, a jury awarded Jordan $8.9 million after a federal judge determined that Dominick’s violated Jordan’s rights under the Illinois Right of Publicity Act.  Jewel and Jordan were scheduled to start… Continue Reading

WEBINAR: The Fusion of Fashion & Technology (Oct. 20, 2-3 pm ET)

Posted in Advertising & Product Risk Management, Events, International Trade, IP/Brand Protection
Crowell & Moring is partnering with the United States Fashion Industry Association (USFIA) for an October 20 webinar covering the emerging legal landscape for the fashion industry in the digital media age. The webinar will run from 2:00 to 3:00 pm ET and will explore how to: Best protect your intellectual property rights as fashion… Continue Reading

Crowell & Moring Presents on “New Rules of Digital Marketing” at Women’s Wear Daily Event

Posted in Advertising & Product Risk Management, IP/Brand Protection
On Wednesday, September 16, 2015, Advertising and Product Risk Management partners Cheri Falvey and David Ervin and Intellectual Property and Legal Affairs Counsel for the Ralph Lauren Corporation, Tracie Chesterman, presented at an exclusive breakfast hosted by Crowell & Moring and Women’s Wear Daily. The speakers discussed the “New Rules of Digital Marketing” and provided a… Continue Reading

R-E-V-E-R-S-A-L Spells Reversal! The Sixth Circuit Holds Varsity Brands’ Cheerleading Uniform Designs to be Copyrightable.

Posted in IP/Brand Protection
  A recent decision from the Sixth Circuit highlights the ongoing significance of copyright law for the retail and garment industries. On August 19, 2015, the Sixth Circuit, in reversing the lower court’s decision, held that the “stripes, chevrons, zigzags, and colorblocks” on Varsity Brands’ cheerleading uniforms are protectable by copyright. In Varsity Brands et al v.… Continue Reading

.Sucks to Be You?

Posted in Advertising & Product Risk Management, IP/Brand Protection
Caveat Brand Owner: We are in the beginning of a two-month “sunrise period” for trademark owners to register their marks as second level domain names in “.sucks.” While the purported purpose of the “.sucks” domain name is to provide a forum for customers to voice constructive criticism, trademark owners may disagree.  The hefty price tag… Continue Reading

Expect Increased Scrutiny from the USPTO Regarding Trademark Use Claims

Posted in IP/Brand Protection
Trademark applicants and registrants may experience increased scrutiny of their trademark use claims in light of the results of a recent Pilot Program, conducted by the United States Patent and Trademark Office (USPTO), showing that fifty percent (50%) of approximately 500 randomly selected registrants could not support the claims made in previously filed Declarations of… Continue Reading

What Do Actress Lindsay Lohan and Former Panamanian Strongman Manuel Noriega Have in Common?

Posted in IP/Brand Protection, Privacy & Data Protection
Both have recently brought legal actions against video game makers alleging that their rights of privacy or publicity have been violated by characters in video games. The lawsuits are the latest in a series of high profile disputes that pit an individual’s personality rights against a game maker’s First Amendment rights. Various states have enacted… Continue Reading

‘Patent Troll’ Legislation Stalls, at Least for Now

Posted in IP/Brand Protection
Nearly six months after the U.S. House of Representatives passed the Innovation Act (H.R. 3309), and three months after President Obama called on the U.S. Senate to “finish the job,” Senator Patrick Leahy (D-Vt.) is taking the Patent Transparency and Improvements Act off the agenda for the Senate Judiciary Committee. In removing the Senate bill… Continue Reading

EU Court of Justice Issues New Ruling on Website-Blocking Orders

Posted in EU Regulation, IP/Brand Protection
On March 27, 2014, the EU Court of Justice (CJEU) ruled in the UPC Telekabel Wien-case that national courts may impose website blocking orders to internet access providers (IAPs) requiring them to prevent their subscribers from accessing a website containing copyright infringing material, without specifying the concrete blocking measures to be taken. The Court also… Continue Reading

FTC Updates Guidance to Search Engine Industry on the Need to Distinguish Between Advertisements and Search Results

Posted in Advertising & Product Risk Management, IP/Brand Protection
The Federal Trade Commission recently sent letters to a number of search engine companies regarding what the FTC perceives to be “a decline in compliance” with the FTC’s 2002 guidelines requiring that search engine results clearly and prominently distinguish natural search results from paid advertising. In the letter, the FTC notes that the failure to properly… Continue Reading

Third Circuit Finds That Use of a College Football Player’s Likeness in a Video Game Violates His Right of Publicity

Posted in IP/Brand Protection
The Third Circuit Court of Appeals issued an opinion on May 21, 2013, finding that the use of the likeness of Ryan Hart, a former standout quarterback for Rutgers, in a video game about college football, violated Mr. Hart’s right of publicity. Hart v. Electronic Arts Inc., No. 11-3750, 2013 U.S. App. LEXIS 10171, at… Continue Reading

Companies May Begin to Protect Their Online Presence Anew: Trademark Clearinghouse Now Available for New gTLDs

Posted in IP/Brand Protection
As of March 26, 2013, trademark owners may submit their trademarks for inclusion in the “Trademark Clearinghouse,” which may be a valuable tool for minimizing the potential for abuse resulting from the imminent expansion in the number of generic Top Level Domains (gTLDs). Inclusion in the Clearinghouse will give the mark owner the opportunity to… Continue Reading

ICANN Reveals List of Potential New Top-Level Domain Names: What Every Retailer Needs to Know

Posted in IP/Brand Protection
On June 13, 2012, the Internet Corporation for Assigned Names and Numbers (“ICANN”) – the nonprofit corporation that is responsible for managing critical parts of the Internet infrastructure – publicly released a listing of approximately 1,900 new generic top-level domain names (“gTLDs”) that may be approved for use as early as March 2013. Every retailer… Continue Reading

Crowell & Moring to Host Reception During ICANN 40 Conference in San Francisco (Thursday, March 17)

Posted in IP/Brand Protection
On the occasion of ICANN 40, Crowell & Moring will be hosting a reception at the Press Club in San Francisco. ICANN (the Internet Corporation for Assigned Names and Numbers) is holding its conference in San Francisco from March 13-18. ICANN is currently in the process of expanding the suffixes used for internet domain names.… Continue Reading

Another Patent Plaintiff Sets Its Sights on Retailers

Posted in IP/Brand Protection
2011 is rapidly becoming the year that the patent plaintiffs turned their attention to retailers. As previously reported, GeoTag, Inc., recently brought a patent infringement lawsuit in the Eastern District of Texas against more than three hundred retailers alleging that store locator functions on the retailers’ websites infringed its patent. Now, another frequent patent plaintiff,… Continue Reading

More than 150 Retailers Targeted by GeoTag, Inc. in Patent Lawsuit Over Store Locator Website Function

Posted in IP/Brand Protection
On December 17, 2010, GeoTag, Inc. filed seven patent infringement lawsuits in the U.S. District Court for the Eastern District of Texas against more than 150 retailers. The seven lawsuits will likely be consolidated in some manner (if only for administrative purposes) and will be one of the largest patent litigations ever brought in that Court. Although… Continue Reading

Proposed Fashion Design Copyright Legislation In Congress

Posted in IP/Brand Protection
Current United States Copyright Law does not protect the overall appearance of fashion design.  However, if the sponsors of a pending Senate bill have their way, that might change in the near future. Copyright law protects original works of authorship but expressly does not protect what are known as “useful articles.”   Unfortunately for fashion designers,… Continue Reading

Changes Coming to Domain Name Practices

Posted in IP/Brand Protection
The Internet naming system will soon undergo profound change. Early in 2011, the Internet Corporation for Assigned Names and Numbers (ICANN) intends to liberalize the Internet’s current naming hierarchy by enabling a large number of generic Top-Level Domains (gTLDs) to be added to the existing system. That means that you – and your competitors –… Continue Reading

Costco Allowed to Protect Its Suppliers’ Identities as Trade Secrets In a Manufacturer’s “Unauthorized Retailer” Action

Posted in IP/Brand Protection
Case: Citizens of Humanity, LLC v. Costco Wholesale Corp., Cal. Court of Appeal, Second District No. B204117 (2/11/09) The One Sentence Summary: In a manufacturer’s suit challenging Costco’s sale of high end jeans intended for sale only at authorized retailers, Costco was allowed to keep secret the names of its suppliers as a trade secret.… Continue Reading

Statutory Implied Warranty Under California UCC of No “Rightful” Claims Is Breached by Nonfrivolous Trademark Infringement Claims

Posted in IP/Brand Protection
Case: Pacific Sunwear of California, Inc. v. Olaes Enterprises, Inc., No. D051391 Fourth Dist., Div. One. (Oct. 9, 2008) The One Sentence Summary: Unsuccessful trademark infringement claims asserted against the buyer of “Smile Now, Cry Later” Hot Sauce Monkey shirts supported the buyer’s claim that the seller breached the statutory implied warranty of section 2312(3)… Continue Reading