Fashion Apparel Law Blog : Fashion Apparel Law Lawyer & Attorney : Sheppard Mullin Law Firm : Fashion Legal Issues

By Dawn Lurie

With comprehensive immigration reform on the horizon and the economy rebounding, the number of H-1B visa filings for foreign temporary professional workers is likely to significantly increase this year. American businesses recognize that to compete in the global economy, smart, competitively trained, and diverse talent is critical. In many industries, foreign workers, including H-1B degreed professionals, are an integral part of such a workforce. There are only a limited number of new H-1B visas issued each fiscal year, and how quickly they are utilized is tied to the economy and market demand. For the 2013 fiscal year, the H-1B cap was reached on June 11th 2012, five months earlier than in FY 2012 when it was not reached until November 23, 2011.

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On September 14, 2012, the Indian government announced that it would relax restrictions on foreign direct investment (FDI) in multi-brand retail. India—a country that traditionally excluded foreign investment—opened its doors to global supermarkets, such as Wal-Mart and Tesco. While the decision still must clear bureaucratic hurdles, American retailers welcome the opportunity to capitalize on one of the world’s largest consumer markets. On November 27, 2012, India’s federal government indicated for the first time that it may be open to a vote in parliament on the issue.

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On October 15, 2012, the United States Court of Appeals for the Second Circuit issued its opinion in Jovani Fashion, Ltd. v. Fiesta Fashions , Docket No. 12-598-cv, 2012 WL 4856412, holding that the prom dress artwork of fashion designer Jovani Fashions, Ltd. (“Jovani”) lacked copyrightable elements, and thus, could not be infringed by a competitor’s design. Though not a precedential decision, the opinion serves as both an important reminder of the absence of copyright protection afforded the fashion world and a streamlined instruction on the scope of and limits on copyrightable elements in works of fashion.

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By Robert Magielnicki

On October 1, 2012, the Federal Trade Commission issued revised “Guides For The Use Of Environmental Marketing Claims” – the “Green Guides,” 16 CFR Part 260. The Green Guides originally were issued in 1992 and were revised in 1996 and 1998. The review resulting in the latest revisions began in November 2007.

The Green Guides set forth the FTC’s views concerning environmental claims and are intended to help marketers avoid making environmental marketing claims that are unfair or deceptive and thus violative of Section 5 of the FTC Act. The Guides are administrative interpretations of the law and thus do not have the force and effect of law. However, the FTC can take action under the FTC Act if a marketer makes an environmental claim that is inconsistent with the Guides.

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As companies are presented with the ever-challenging goal of achieving and maintaining brand recognition, many fashion companies are now attempting to engage consumers in both the real and virtual worlds. Gaming represents one non-traditional avenue that has undergone recent growth, as brands find value in connecting with existing and potential consumers through interactive online means.

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By Tyler Baker and Ted Max

On September 5, 2012, the United States Court of Appeals for the Second Circuit issued its long-awaited and highly anticipated decision in Christian Louboutin S.A. v. Yves Saint Laurent Am. Holding, Inc., Docket No. 11-3303-cv. The Second Circuit reversed the lower court decision, in part, holding that Christian Louboutin’s “red outsole” trademark was valid and enforceable, and affirmed in part, holding that such trademark protection was limited to uses in which the “red outsole” contrasts with the color of the remainder of the shoe. As a result, the appeal of Christian Louboutin (“Louboutin”) was not successful and the fashion atelier Yves Saint Laurent (“YSL”) was not enjoined from using a red sole as part of a monochrome red shoe. The ruling, deciding a novel and hotly debated issue of U.S. trademark law regarding aesthetic functionality, is a victory for both sides in some respects, yet certainly leaves the door open for future debate and lawsuits about the scope of the Louboutin mark’s protection.

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In recent years, the U.S. government has vigorously enforced the Foreign Corrupt Practices Act ("FCPA") against individuals and companies representing a variety of industries. Recent press reports suggest that entertainment companies may be the target of current SEC enforcement efforts, and the government is in the midst of a long-running investigation of Avon Products, Inc. Other companies in the fashion and beauty industry should consider how best to protect against violations.

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A wave of shock and unpleasant surprise is spreading amongst consumers of beauty products and cosmetics in most of the Western world as many big-name beauty brands are accused of going back to animal testing in order to fulfill the legal requirements of the cosmetics market in China. The fever to expand market share has hit broadly, as the reversal of years of progress in suppressing animal testing also affected high-end international brands that lost their "Leaping Bunny" logo, which ethical guarantee is overseen by the Coalition for Consumer Information on Cosmetics, and assures purchasers that their favorite beauty brand does not resort to animal-testing in the elaboration of its products.

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Congress recently introduced the whimsically titled bill, the “Team U.S.A. Made in America Act,” which would require the United States Olympic Committee to ensure that ceremonial uniforms for the Olympic team are assembled in the United States with fabrics manufactured in the United States. Regardless of whether clothing is made in or imported to the United States, current U.S. Federal regulation requires that clothing bear its country of origin designation. Currently, around 98% of all clothing for sale in the U.S. is imported.

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