In the recent article, “Facebook and Google settled biometrics lawsuits. Look for more.” featured in Crain’s Chicago Business, Partner Jason Stiehl analyzes wider repercussions of Snapchat’s recent settlement after accusations that it used facial recognition technology that collected and stored users’ biometric information without consent. Stiehl explains that he expects more litigation due to Illinois’
On November 11, 2021 activewear apparel brand lululemon athletica canada inc. (“lululemon”) sent a cease and desist letter to interactive fitness platform Peloton Interactive, Inc. (“Peloton”), alleging that five of Peloton’s products, including four bras and a pair of leggings, were infringing upon six of lululemon’s design patents and that Peloton’s One Luxe Tight infringed upon lululemon’s Align pant trade dress.
Rather than spinning its wheels, on November 24, 2021, Peloton responded with an action for declaratory judgment against lululemon in the Southern District of New York, seeking (1) a determination that Peloton did not infringe lululemon’s design patents, (2) invalidity of these patents, and (3) a declaration that lululemon does not have trade dress rights in the Align pant and/or that Peloton did not infringe upon this trade dress. Specifically, Peloton argues that there are clear and obvious differences between its products and lululemon’s design patents, the presence of the brands’ trademarks on the products eliminates confusion, and the design patents are anticipated and/or obvious based on prior art. For example, Peloton emphasizes that the back of its Peloton Branded Strappy Bra is cut straight across and has a mesh layer, while the design patents depict a scooped back and no mesh layer, among other differences. Peloton also argues that the asserted Align trade dress does not possess the requisite distinctiveness to be protectable, and even if it does, Pelton’s One Luxe Tight is not likely to cause marketplace confusion.
Continue Reading Peloton and lululemon Yet to Work Things Out, File Cross Lawsuits
Recalls in Review: A monthly spotlight on trending regulatory enforcement issues at the CPSC.
Certain products, like toilet paper and disinfectant, flew off of store shelves when the country began responding to the current COVID-19 pandemic. In recent months, new and used bicycles have become one of the next “must have” items as people look for socially distant activities and alternative modes of transportation.
The CPSC has regulated bicycles and their component parts since the 1970s. Just last month, the Commission published a Safety Alert regarding bicycle handle bars– warning consumers to inspect their bicycle handlebars for sharp, exposed metal ends, which can pose a serious impalement hazard. At least six impalement deaths and 2,000 emergency room visits between 2000 and 2019 are linked to bicycle handlebars, according to the alert. Plastic or rubber grips on the ends of bicycle handlebars can prevent those injuries and CPSC’s regulation requires handlebar ends to be capped or otherwise covered.
The CPSC has conducted 253 recalls of bicycles and bicycle parts since 2001.[1]
Continue Reading Recalls in Review: Bicycle and Bicycle Part Recalls
The New York style community is a world leader in pushing creative boundaries. Crowell & Moring’s New York Fashion & Beauty Breakfast Series is designed to create a forum that brings together fashion and beauty industry executives to explore topics of relevance and to develop lasting connections.
On June 6, 2019, industry insiders gathered for
Retailers and consumer products companies need to be aware of a new law affecting negative online reviews. On December 14, 2016, President Obama signed the Consumer Review Fairness Act of 2016 (H.R. 5111) into law. The Act voids “non-disparagement clauses” in form contracts designed to prevent consumers from posting negative comments and online reviews of products and services. The Act also makes it unlawful for companies to include these clauses in their form contracts. The Federal Trade Commission will enforce the Act in the same way it enforces against unfair or deceptive trade practices under its jurisdiction; state attorneys general may also enforce the Act under certain conditions. For existing contracts, the Act will take effect in 90 days and FTC/state enforcement may commence one year from now.Continue Reading Consumer Review Fairness Act of 2016 — Beware of the Negative Online Review
In a memo dated July 22, the Occupational Safety and Health Administration (OSHA) announced that it was revising its interpretation of the “retail facilities” exemption from its Process Safety Management (PSM) standard, as codified at 29 C.F.R. § 1910.119(a)(2)(1). The PSM standard requires employers to manage hazards associated with processes involving highly hazardous chemicals.
In January 2014, a blind patron sued Lucky Brand Jeans for discrimination when he was not able to use Lucky Brand’s point-of-sale (“POS”) device to independently complete a debit purchase because the visual touch screen on the POS was not discernible to blind individuals. The plaintiff filed a class action under title III of the Americans with Disabilities Act (“ADA”) in the U.S. District Court for the Southern District of Florida. Recently, the Department of Justice (“DOJ”) filed a Statement of Interest in this case in response to two arguments advanced by Lucky Brand in a motion to dismiss.
Lucky Brand argued that: (1) there is no requirement within the ADA and its regulations mandating that the POS devices have the capabilities requested by the plaintiff; and (2) since blind customers can purchase items by using cash, credit, or by processing their debit card as a credit card, there was no discrimination under the ADA merely because the plaintiff could not use the POS device to use his debit card as a debit card.Continue Reading DOJ’s Recently Articulated Position on the Accessibility of Point-of-Sales Devices
General Growth Properties has completed the spin-off of 30 shopping malls into a publicly traded real estate investment trust called Rouse Properties, the Chicago-based company announced.
The properties in question are scattered across 19 states and are located in either small U.S. cities or in what are viewed as second-tier centers in larger cities
As previously reported, Simon Property Group, Inc. recently acquired Prime Outlets Acquisition Company, LLC. This gained the attention of the FTC, which determined that the merger would result in reduction or elimination of competition among outlet centers in southwest Ohio; Chicago, and Orlando. Now, as part of a settlement with the FTC, Simon will divest some of its property and modify certain tenant leases.
Continue Reading Simon Reaches Agreement with FTC over Prime Outlets Acquisition; Comments Due December 10
Traditionally, retail tenants have sought to include provisions in their leases explicitly giving them the right to audit landlords’ books, particularly with regard to common area maintenance (CAM) charges. However, case law suggests that a retailer may not be out of luck if its lease is silent as to audit rights. Tenants should also be aware that even where audit rights are set out in a lease, landlords often insert restrictive clauses that seek to limit tenants’ rights to recover overcharges in court.
Continue Reading The Effect of CAM Audit Clauses in Retail Leases