Kim Kardashian West Won the First CFDA Influencer Award: Will A CGI Supermodel Be Next?

It is no secret that the world of fashion is full of surprises. On Monday, June 4, 2018, Kim Kardashian West won the Council of Fashion Designer of America (“CFDA”) first-time Influencer Award and commented: “I’m kind of shocked I’m winning a fashion award when I’m naked most of the time.”[1] Fashion advertising and marketing rely more and more upon social media and influencers for the ability to connect with consumers in an authentic manner.[2] As a result, fashion models and celebrity influencers are in high demand. Now, a new group of unique model influencers are taking the fashion world by storm. Yet, it is unlikely that any of these new influencers will ever win the CFDA Influencer Award. Continue Reading

Monumental Shift in Sales Tax Collection Requirements for Remote Retailers

On June 21, 2018, the United States Supreme Court issued its decision in South Dakota v. Wayfair, Inc., overturning a 26 year-old decision holding that a retailer must have a physical presence in a state in order to have a sales or use tax collection obligation. The Wayfair decision has an immediate and major impact on retailers of all sizes, but also leaves open numerous unanswered questions.

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The Dynamex Decision: The California Supreme Court Restricts Use of Independent Contractors

On Monday, April 30, 2018, the California Supreme Court issued a landmark decision in the matter of Dynamex Operations West, Inc. v. Superior Court of Los Angeles. In a voluminous, 82-page decision, the California Supreme Court reinterpreted and ultimately rejected the Borello test for determining whether workers should be classified as either employees or independent contractors for the purposes of the wage orders adopted by California’s Industrial Welfare Commission (“IWC”) in favor of a worker-friendly standard that may upend the existing independent contractor labor market.

In particular, the Court embraced a standard presuming that all workers are employees instead of contractors, and placed the burden on any entity classifying an individual as an independent contractor of establishing that such classification is proper under the newly adopted “ABC test” which will be discussed in further detail below. Continue Reading

#MeToo Mobilizes State Legislatures, Creates New Training Obligations For Employers

On April 12, 2018, Governor Andrew Cuomo signed the 2019 budget for the State of New York (the “Budget”) which dramatically changed the landscape of obligations which New York employers are to their employees.  Beyond allocating financial resources, the Budget includes a new change to New York law requiring New York employers to conduct annual sexual harassment training for all employees in accordance with state standards.  Viewed as a response to the #MeToo movement, the Budget tasks the New York State Department of Labor and New York State Division of Human Rights with creating an interactive model sexual harassment training program for employers in the state, which shall contain the following elements:

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Under the Radar Changes to Proposition 65 – OEHHA Issues New “Guidance” For Web Purchases (Is it an Illegal “Underground Regulation”?)

If your products are sold online or you operate a website with sales to consumers in California, these changes will impact whether you can obtain “safe harbor” protection under Prop 65.

Over a year after adopting new regulations—which were crafted through an exhaustive 3 year rulemaking process of public workshops, public comments, and revisions to address stakeholders’ concerns—California’s OEHHA (Office of Environmental Health Hazard Assessment) issued a guidance document purporting to change the answer to the question of whether a website warning is sufficient to qualify for “safe harbor” protection or whether a separate type of warning must be provided to the consumer in addition to the website warning. OEHHA, the state entity charged with managing Prop 65, quietly changed its position on the subject and offered so-called “guidance” that imposes much more onerous obligations. If you have already assessed whether you company is in compliance and ready for the new regulations, you should consider reviewing them again. Continue Reading

An Uphill Battle Protecting Fashion Designs In Nigeria and Abroad

Growing frustration in the fashion community regarding weak or non-existent intellectual property laws has finally caught the attention of some nations. Nigeria is one nation that currently is trying to alleviate this frustration by reforming its intellectual property laws. This reform is driven, in part, because, Lagos, Nigeria has quickly risen as a fashion hub, and has been compared with such fashion centers as London, Paris, Milan, and New York. Nigerian designers have recently experienced great global success and visibility. For example, Amaka Osakwe has been pushing the limits of Nigerian fashion and has gained the attention of fashionistas in the United States and abroad. In 2014, she was invited to the White House by Michelle Obama, an admirer of her work, and her “Maki Oh” designs have been worn by Lupita Nyongo and other A-list celebrities. Last year, Ms. Osakwe was named a LVMH Louis Vuitton Moët Hennessy Finalist, placing her among the most notable young fashion designers in the world today. Other talented Nigerian designers include Duro Olowu, Deola Sagoe, Lisa Folawiyo, and Lanre DeSilva-Ajayi. As these designers continue to gain worldwide recognition, they must protect their designs from infringement both within Nigeria and globally. Continue Reading

Do We Need A Truth In Advertising Act? The Industry and Retailers Self-Regulate Photoshopping Ads

Digitally altered images of models have been a controversial advertising issue for decades. In Great Britain, the Advertising Standards Authority Ltd., which is the governing regulatory advertising body, in 2011 banned skincare advertisements featuring digitally altered images because the advertisements exaggerated the effects of the skincare and makeup products and were held to be misleading “per se.”[1] In France, as of October 1, 2017, “it [was] mandatory to use the label ‘retouched photo’ alongside any photo used for commercial purposes where the body of a model has been modified by image-editing software to either slim or flesh out her figure” and any violation might result in a fine of up to €37,500. Continue Reading

WARNING: Prop 65 Has Changed – If Your Product Is Sold In California Or You Do Business In California, Pay Attention

What is Prop 65?

Prop 65 is a California law that requires California consumers receive warnings regarding the presence of chemicals that cause cancer or reproductive toxicity. The law is highly technical, constantly evolving and actively enforced by the government and private enforcers. Continue Reading

Selective Distribution Systems and Bans on Sales of Luxury Products via Online Market Platforms: Initial Thoughts on the CJEU’s Coty Judgment

The Court of Justice of the European Union (CJEU) confirmed in a short judgment of 6 December 2017 that a prohibition imposed on authorized distributors from using third party platforms for the sale of their luxury products is in line with European competition law provided certain conditions are met. This judgment also ends an ongoing debate and confirms that selective distribution systems are indeed permissible if they are used to preserve and enhance the luxury image of a product. This outcome is not surprising to those familiar with the Court’s case law and is welcomed by companies running selective distribution networks to market their luxury products. However, the judgment is specific to the facts at hand and bans relating to online platforms will have to be reviewed on the basis of the merits of each case and of the products concerned. Continue Reading

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