ADVERTISING AND PROMOTIONS
Word of mouth and a few billboards just don’t cut it any longer. Fashion and apparel brands and retailers are utilizing new and sophisticated advertising and promotion methods to increase market share and brand awareness — from online search optimization, to gift cards, to sweepstakes and contests, product placement, etc. Advertising law necessarily touches on a wide variety of legal disciplines, including entertainment, intellectual property, unfair competition, privacy and publicity rights, constitutional rights, e-commerce and antitrust and government trade regulation, among others. Our advertising lawyers specialize in these issues from both counseling and litigation perspectives.
Sheppard Mullin is experienced in preparing endorsement, sponsorship, sports and entertainment marketing and licensing agreements, clearing online, print, television and radio advertising copy, complying with privacy concerns, preparing advertising agency and media agreements and advising clients in complying with state and federal regulations governing some of the highest profile contest and sweepstakes promotions in the country. Our work generally covers the full range of advertising, marketing and promotional endeavors. Our attorneys effectively represent clients in all types of advertising proceedings including private litigation involving false advertising, libel, trademark infringement, copyright infringement, right of privacy and right of publicity issues in federal and state courts, the investigation of false and deceptive advertising claims by the Federal Trade Commission and the various state attorneys general and self enforcement proceedings by trade groups, including the National Advertising Division of the Council of Better Business Bureaus. We also conduct in-house compliance programs designed to educate and train employees in these areas.
Beyond providing superior technical legal analysis, our attorneys consistently compliment and support our client’s oftentimes unique objectives by devising and executing tactics and strategies that are innovative, aggressive and practical. Our proven ability to provide “big picture” service on time and on budget is enhanced by firmwide access to the skill, knowledge and relationships of Sheppard Mullin’s full institutional depth. This depth, combined with our unique expertise in advertising law and litigation, puts us at the top of our field. Our advertising expertise spans the full spectrum of advertising, marketing and promotions issues, including:
- Clearance of third party rights including copyrights in text, music, art,
- photographs, graphics and design; trademark and trade dress rights in words,
- logos, slogans and colors; and rights of privacy and publicity
- Use of consumer, celebrity and expert testimonials and endorsements to make
- product claims
- Claim substantiation issues including use of clinical studies and tests to support
- product claims
- Use of comparative advertising
- Use of pricing claims including comparative pricing, “sale” pricing, “free” offers
- and “no sales tax” promotions
- Use of rebates
- Use of “Made in U.S.A.” claims
- Use of “green” claims
- Text of warranties, warnings and disclaimers
- Branded entertainment and promotional tie in transactions
- Clearance review covering copyright, trademark, privacy, publicity and First Amendment rights, defamation and related issues
Changing demographics and technological advancements like the DVR have changed the way advertising is viewed and delivered. From branded programming to mobisodes to “organic” product placement, the era of branded entertainment has arrived.
Sheppard Mullin’s superior advertising and entertainment practices intersect at branded entertainment. Every day our lawyers assist entertainment and media companies, advertisers, production companies, and advertising agencies with their branded entertainment initiatives.
We represent television networks, film studios, online media providers, retailers, brands, reality television producers, and advertising agencies in structuring and negotiating branded entertainment deals with content creators and providers for use in all forms of media. Known and respected by the content creators, content distributors, advertisers and advertising agencies, we add additional value through our deep knowledge of and relationships in the entertainment and advertising industries. Having worked hand in hand with clients to develop some of the best known and most broadly viewed branded entertainment properties, we are branded entertainment counselors for all of your potential needs, from original sponsored programming, to “organic” brand placement, to tie in merchandising and promotions, to concert tours, endorsements, etc. Since branded entertainment knows no borders, we have developed a network of advertising and entertainment lawyers in virtually every market around the world. This enables you to go to directly to one la firm to shepherd all of your branded entertainment needs worldwide.
ANTI-PIRACY AND COUNTERFEIT GOODS
Piracy is not a legal theory, it is a business problem that costs the global economy trillions of dollars a year. Piracy attacks brands, the lifeblood of the fashion and apparel industry. New and cheaper manufacturing technologies have given pirates new tools, as have illicit online distribution methods.
We partner with our clients to develop cost-effective anti-piracy programs to meet your specific needs. Our attorneys have been trusted by the U.S. and Japanese governments to advise them on domestic and international anti-piracy concerns. We collectively have decades of experience representing fashion and apparel companies in anti-piracy matters. Our attorneys have planned and executed domestic and international seizures. We have made the law (on behalf of a footwear company) that most now rely on for extraterritorial application of the U.S. Trademark laws. We coordinate with investigators and make criminal referrals. We are experts at addressing and taking down unauthorized Internet sales and auctions.
Whether it be a brand, a logo, a pattern or a design on a knockoff, we recognize that is the heart of your business. Piracy will not disappear, but Sheppard Mullin can provide your business with the tools and a plan to fight back that is right for you.
FACTORING AND FINANCING
Our team is experienced in all variations of industry related financing transactions, including:
- Financing and distribution arrangements
- Rights acquisition financings
- Revolving credit finance facilities
- Complex secured distribution arrangements
- License financing and securitization facilities
- Working capital revolving lines of credit
- Merger and acquisition financings, including both public senior debt and senior bank debt
- Complex intercreditor and inter-party arrangements
- Foreign export/import transactions
CORPORATE FINANCE AND SECURED TRANSACTIONS
Whether your corporate finance needs involve public offerings, private placements, including venture capital and angel financing, Sheppard Mullin attorneys are experienced and ready to assist. We have served as counsel to a variety of issuers, underwriting firms and investment banking firms in connection with initial and other public and private offerings of securities. Our attorneys have participated in all aspects of the private placement of securities, representing issuers, private placement agents, equity funds, institutional investors and venture capital firms in every type of private financing transaction, including seed financing angel investments, venture capital financing, later stage equity or mezzanine financing, PIPES and private debt financing. The hands-on experience of our attorneys in a wide variety of offerings gives us the ability to develop creative solutions to problems encountered in the course of any corporate financing.
LICENSING AND DISTRIBUTION
Since you can’t do it all yourself (if you can, or do, see our Antitrust section below), licensing and distribution relationships become an integral part of the fashion and apparel industries. These can be some of the best and most profitable relationships your company has or some of the worst. The license and distribution agreements have a lot to do with the outcome. Sheppard Mullin can make those agreements foster a good relationship and make one more easily extricated from a bad one. Our attorneys handle everything from single party licenses, to multi-party multi-level distribution and license agreements, both domestically and internationally.
LABOR AND EMPLOYMENT
Sheppard, Mullin, Richter & Hampton LLP’s has one of the largest and most experienced Labor and Employment law practices in the country. In addition to representing employers of all sizes—ranging from Fortune 100 companies to start-ups—Sheppard Mullin provides labor and employment advice to a broad base of fashion, apparel and textile companies, including:
- Apparel Retailing and Retailers
- Fashion Design and Designers
- Department & Clothing Stores
- Textile Manufacturing
- Fabrics Manufacturing
- Apparel Wholesalers/Distributors
Sheppard Mullin attorneys provide labor law counseling to employers on a broad range of issues, including:
- Employee discipline, termination and other employee relations issues
- Employee benefits, employee leaves and wage and hour issues
- Employment contracts and executive compensation
- Handbooks and personnel manuals
- Reductions in force
- Harassment and discrimination
- Management and employee training programs
- Workplace privacy and workplace violence
- Internet and e-mail usage policies
- Affirmative action and OFCCP audits
- Disability access and accommodation
- Employee arbitration agreements
- Drug and alcohol testing
- Immigration issues
Our attorneys have also litigated and resolved virtually every type of dispute that can arise in the day-to-day operations of a major entertainment institution, such as:
- Wage and hour class actions
- Harassment and discrimination claims
- Defamation claims arising from the workplace
- ERISA claims
- Stock option disputes
- Unfair competition, trade secret and privacy matters
- Qui Tam False Claims Act and whistle blower actions
- Wrongful termination claims
Sheppard Mullin has unique expertise in the wage and hour area and regularly works with employers to ensure that their compensation and classification practices comport with state and federal law. The firm is regularly called upon to defend complex wage and hour class action litigation. Our attorneys are also known for the ability to resolve disputes without resorting to litigation or trial. Our Labor and Employment attorneys also represent clients in traditional labor law matters pertaining to unions and the National Labor Relations Act. This advice has included counsel pertaining to:
- Collective bargaining
- Prevailing wage compliance and disputes
- Strikes, picketing and boycotts
- Unfair labor practice charges
- Union organizing drives and the de-unionizing process
- Labor arbitrations
In addition, Sheppard Mullin offers expertise in the negotiation and documentation of senior executive employment agreements. This expertise includes devising performance and stock oriented compensations plans, as well as other deferred or incentive based plans, preparing confidentiality, trade secret and non-interference agreements and advising on tax and employee benefit matters.
CREDITORS’ RIGHTS AND BANKRUPTCY
While your business may flourish, those of your customers, vendors and suppliers may not always be so fortunate. Sheppard Mullin is a leader creditor/lender rights counseling. Sheppard Mullin attorneys work daily to develop solutions for creditors that create and preserve value, requiring an in-depth understanding of litigation strategies and commercial, bankruptcy and real estate law. Provisional remedies are time sensitive and offer tactical advantages in resolving a creditor/debtor dispute. These include:
- Writs of attachment in;
- Writs of possession over personal property;
- Judicial foreclosure actions; and
- Appointment of receivers
IMPORT, EXPORT AND CUSTOM MATTERS
The movement of goods and information across borders – whether as finished products, components, demonstration models, or selling aids – is a fact of life. Another fact of life is the intricate web of governmental regulations that oversee, control, and sometimes prohibit the movement of such products and information outside across and within borders. Sheppard Mullin advises and represents U.S. and foreign clients in connection with the wide range of compliance and enforcement issues relating to the import, export and re-export of products Customs, Departments of Commerce and State regulations, as well as the economic sanctions rules of the Treasury Department. We assist clients with:
- Commodity classifications and commodity jurisdiction requests
- Export license-related counseling under the International Traffic in Arms
- Regulations (“ITAR”) and Export Administration Regulations (“EAR”)
- Manufacturing License Agreements
- Technical Assistance Agreements
- Distribution Agreements
- Planning and implementing export compliance programs
- Export compliance audits and internal investigations
- U.S. anti-boycott laws
- Trade embargoes
- Limitations on foreign agent fees
- Foreign Ownership Control or Influence (“FOCI”)
- The Foreign Corrupt Practices Act
- Allowability and Allocability of foreign selling costs under federal contracts
MERGERS AND ACQUISITIONS
When it is time to go shopping or be shopped, Sheppard Mullin offers its clients a savvy and talented group of M&A attorneys that “do deals” throughout the United States and overseas. We advise individuals and small privately held businesses, private equity firms and multinational public corporations on all types of M&A transactions, including mergers, purchases and sales of stock and assets, management buyouts, recapitalizations and other corporate restructurings. Our attorneys have been involved in transactions which have been both friendly and hostile, have advised both foreign and domestic participants on cross border transactions and have utilized a myriad of acquisition structures and forms of consideration to help accomplish our clients’ goals. Our attorneys represent bidders, target companies, investment bankers, financial advisors and many others that participate in M&A transactions. We have also been engaged on numerous occasions to serve as special counsel to boards of directors and to independent director committees.
INTELLECTUAL PROPERTY PROTECTION
A brand, a design, a print, a unique textile – these are the cornerstones of the fashion and textile industries. Protecting this intellectual property is a key element in maintaining its competitive advantage. Our team of intellectual property attorneys will work side by side with you to register and protect your rights through:
- Patent and trademark and ownership searches.
- Prepare and file foreign and domestic patent (including design patent), trademark and copyright applications.
- Monitor and maintain an extensive and thorough in-house database and docketing system.
- Draft, negotiate, implement and administer all types of agreements licensing, transferring or granting rights in your intellectual property.
- Protect your rights and help you avoid the infringement of other’s rights through extensive searches and investigations, preparation of notice letters, and recordation of IP rights with U.S. Customs.
We offer a complete international trademark practice, including worldwide trademark portfolio management and brand development services, including international trademark, service mark and trade name clearances, trademark prosecution on a national, regional (e.g., European Union) and international filing bases, as well as international licensing and distribution agreements, supplier, manufacturer and vendor agreements.
Our attorneys have handled Fortune 500 international intellectual property and brand acquisitions, as well as other international transactions such as international title searches, due diligence and worldwide intellectual property assignments. With our network of associated attorneys throughout the world, we handle trademark registration matters in practically every country in the world. Our experience extends to creation and management of large portfolios exceeding 500 registrations worldwide.
We also perform brand watching services, render international infringement opinions, engage in anti-counterfeiting actions and enforcement activities, in-use investigations, conduct due diligence and analyze the proper brand protection and enforcement activities for each client, depending upon need.
We routinely counsel clients regarding Copyright Act protection and obtain copyright registrations, including those specific to the fashion and apparel industries, such as product designs, web sites and marketing communications, Music and audiovisual works and fine art. Once a copyright is registered, we work with clients to preserve exclusive rights under both U.S. law and international treaties.
In addition to protecting our clients’ rights we ensure they do not run afoul of the rights of others’ rights. We counsel to avoid infringing third party copyrights and obtain licenses to use third party copyrighted works.
While brands and patterns are protected by trademark and copyright laws, advances in fabric or process technology can be protected with through the patent system or as trade secrets
As an example, performance fabrics may be protected by patents. Such fabrics, which may resist stains, wrinkles or wick-away moisture, are typically treated with a proprietary polymer coating that minimally affects the “hand” of the material. The nature of the coatings and the application methodology may be able to be protected by a patent application. Sheppard Mullin attorneys have wide-ranging expertise in patent applications related to performance fabrics and their enforcement. Our patent attorneys also provide “freedom to operate” analyses in this area.
Where the patent system does not provide the best mechanism to protect inventions in the textile industry, trade secret law may. Trade secrets offer the advantages of not being time-limited and it not requiring disclosure of the invention. We regularly assist in putting trade secret protection programs in place to protect the proprietary status of your invention and comply with SEC reporting rules
JOINT VENTURES AND OTHER STRATEGIC BUSINESS RELATIONSHIPS, TRANSACTIONS AND ALLIANCES
Sheppard, Mullin, advises clients with respect to a broad range of transactions involving various types of “corporate partnering” arrangements. We have in-depth expertise in structuring and negotiating joint ventures and strategic alliances (whether a start-up company, a privately held business, a public corporation or other form of joint enterprise) for resource and product acquisition, distribution, development, infrastructure development, market penetration and risk sharing purposes. We advise on all ancillary agreements, such as marketing, distribution, license and supply agreements. Structuring and negotiating these very complicated transactions requires, in addition to legal guidance and counseling, substantial business acumen and experience; all of which we have garnered through the depth of our experience in these transactions. Our expertise ranges from start to finish including the formation, operation, dispute resolution and potential liquidation of the enterprise. Our proven track record in advising clients to select the right joint ownership structure and negotiate all related agreements has allowed us to close these transactions quickly and efficiently.
LEASING OF MANUFACTURING, SHOWROOM AND RETAIL FACILITIES
Unless you run your business out of a home, you need real estate. Sheppard, Mullin has vast experience representing tenants in commercial leasing transactions. Our experience includes the unique issues of urban and suburban office space, industrial parks, shopping centers, mixed use retail, distribution centers, etc.
We negotiate and prepare numerous special purpose high rise ground leases for urban high rise buildings, corporate headquarters, campuses and free standing retail and commercial facilities. The lease forms we prepare are tailored to the requirements of specific markets so that the lease becomes more of a marketing tool and less of an impediment to the documentation of a transaction. We have also developed forms for those transactions that are typically ancillary to leases such as tenant improvement agreements, parking agreements and guarantees. Our attorneys have far reaching experience counseling tenants in connection with lease disputes, workouts and buyouts, including resolution of issues involving the exercise of options, assignment and subletting, tenant improvements and defaults.
Franchising is an important and frequently used business form in the fashion and apparel industries in the United States and globally. Approximately 20% of the U.S. gross national product results from franchise operations, which employ a combined 8 million people. In 1994, over 40% of all retail sales— totaling $970 billion—were made by franchise establishments, with new goods and services being added to franchising’s repertoire on a daily basis. As franchise systems mature into billion dollar enterprises and as franchisees and potential franchisees seek increased participation and profit, franchise related legal disputes are inevitable. Franchising’s legal structure requires an interdisciplinary approach to franchising transactions and disputes. While common law contract and tort principles are applicable to every franchise relationship, the field is increasingly dominated by statutory law, including specialized state and federal franchising statues, antitrust, trademark, copyright and patent law. The franchise relationship goes hand in hand with brand protection and intellectual property as the franchisee is often the brand’s largest exposure to the consumer.
Sheppard Mullin clients rely on the firm’s experience and specialized knowledge in the areas of franchise litigation, substantive franchise law, intellectual property, bankruptcy and creditors’ rights, labor and employment and antitrust and trade regulation to provide an integrated, one stop resource for clients presented with the unique challenges facing the franchise industry.
LITIGATION AND DISPUTE RESOLUTION
Sheppard Mullin’s Business Trial Practice has more than 200 litigators with significant trial experience in the traditional vehicles for dispute resolution of litigation and arbitration. At the same time, our lawyers recognize and promote the use of mediation and other dispute resolution mechanisms as alternatives that can afford substantial savings of costs and time to our clients in appropriate cases. Litigation has been at the core of the firm’s practice since 1927. Sheppard Mullin litigators possess exceptional trial and appellate skills, in-depth knowledge of state and federal courts at all levels and practical business judgment, all of which contribute to our consistent delivery of solid, cost efficient results.
The firm’s practice involves virtually all aspects of business and commercial litigation. Our litigators represent clients from a broad spectrum of industries such as computers and information technology, financial services, entertainment, aerospace, fashion and luxury goods, manufacturing, transportation, communications, wine and liquor, pharmaceuticals, advertising, print and broadcast media, petroleum production and refining, real estate, insurance, construction and food/beverage manufacturing, among others.
Just as you expect to pay taxes, you should expect your law firm to provide sophisticated tax counsel. Sheppard Mullin’s tax attorneys advise on all areas of corporate tax law, as well as provide clients with sophisticated expertise in employee benefits law, executive compensation, estate/wealth planning and tax-exempt or tax-advantaged finance. Our understanding of evolving tax law allows us to consistently design transactions and solve seemingly insurmountable tax problems in the most advantageous way possible for our client.
Because tax issues are integrated into virtually all areas of the firm’s practice, our tax attorneys are known for their ability to collaborate. Our tax attorneys regularly work with members of the Corporate and Securities, Real Estate and Banking and Finance practices to advise our clients in structuring transactions that comply with federal, state and international tax laws. We can assist clients in structuring transactions and planning business affairs in order to reduce income, sales, transfer, property and other taxes. A sampling of the matters we handle includes:
- Taxable and tax-free mergers, acquisitions and sales
- Venture capital financing and business formation
- Choice of entity and combinations of entities, including C corporations, S corporations, limited liability companies, general and limited partnerships, REITs and cooperatives
- Joint ventures and strategic alliances
- Foreign investment in the United States
- Expansion of U.S. businesses abroad
Our goal is to help our clients achieve their business objectives with practical and effective tax reduction planning.
Sheppard Mullin created the Internet – just checking to see if you are paying attention. Companies and designers are creating their own internet presence. We assist and partner in all areas of this development, including: software agreements, contracts with internet designers and providers, disclaimers and copyright notices, copyright protection, consent agreements, proper use of photos, sponsorship agreements. In addition, assistance is needed to monitor, enforce and protect against unauthorized sale of products, defamation, domain infringements, and false advertising.
Online commercial endeavors also yield a variety of new and complex challenges stretching conventional law far beyond its original scope. Whether a company uses the Internet as an active and dynamic medium for transacting business or as a more passive advertising forum, legal disputes with competitors and other intellectual property owners are inescapable.
Sheppard Mullin attorneys provide guidance and representation in both transactions and litigation in a variety e-commerce areas, including:
- Domain name ownership
- Meta tag copyright infringement
- Unlawful framing or linking
- E-commerce transaction disputes
- Protection and policing of proprietary content
- Privacy concerns
- Libel and defamation
- Jurisdictional effects of website ownership
- Online patent, copyright, trademark and trade secret disputes
- Authority of the Internet Corporation for Assigned Names and Numbers (“ICANN”)
Our attorneys have helped draft and are familiar with some of the newer regulations developed specifically to address e-commerce. We have expertise in drafting protective user agreements and privacy and e-signature policies. Sheppard Mullin’s experienced attorneys are familiar with the laws and regulations governing Internet business, making us effective advocates for our clients’ interests. Among other laws, Sheppard Mullin has assisted clients in interpreting and litigating issues arising out of the:
- Anti-Cybersquatting Consumer Protection Act
- Federal Electronic Communications Privacy Act
- Federal Computer Fraud and Abuse Act
- California Computer Data Access and Fraud Act
- ICANN’s Uniform Domain Name Dispute Resolution Policy
Our track record of resolving Internet disputes with a phone call, cease and desist demand letter, arbitration demand or by bringing and defending litigation in state and federal courts makes our firm a regular choice to solve Internet related problems.
Sheppard Mullin offers a premier benefits law practice. Our attorneys have represented employers, plan sponsors, investment managers, plan fiduciaries, plan trustees and syndicators of investment vehicles in connection with all aspects of qualified and nonqualified retirement plans and employee benefit matters under the Employee Retirement Income Security Act of 1974 (“ERISA”) and the Internal Revenue Code of 1986. As a result, we have had the opportunity to analyze issues, provide advice, draft documents and negotiate positions from many different perspectives. Our well rounded expertise in this highly complex area of the law has benefited our clients for the last several decades. Our experience includes:
- Defined contribution and defined benefit plans
- Profit sharing and 401(k) plans
- Supplemental executive retirement plans (“SERPs”)
- Employee Stock Ownership Plans (“ESOPs”)
- Rabbi trusts
- Deferred compensation plans
- Split dollar life-insurance plans
- 403(b) tax sheltered annuities
- Self-funded and insured health and welfare benefit plans
- HIPPA related challenges
Our advice spans the design, implementation and administration of all such plans. It also includes all work associated with the defense of employee benefit disputes, the evaluation of benefit claims and securing determinations from the Internal Revenue Service and, where necessary, the Department of Labor.
STOCK AND EQUITY TRANSACTIONS
The past decade has seen executive compensation plans become increasingly technical and complex. Employers have learned that to effectively grow their business, they must find ways to compensate executives who contribute to the overall success of the company. Incentive stock options have helped many employers motivate employees not only to contribute to the overall success of the company, but also to stay with the company and acquire more of a vested interest. Tailored commission plans have helped employers keep their sales forces focused on more specific growth goals. To lure the best recruits, employers have also established attractive benefit plans such as bonus plans and stock appreciation rights plans, phantom stock and deferred compensation plans and supplemental executive retirement, employee stock ownership and pension plans. Those employers who have not critically evaluated their compensation packages have found themselves losing valuable employees and recruits to their competitors. Sheppard Mullin assists employers in establishing tailored, attractive incentive and compensation plans to win and keep the employees its competition wants most. We advise on establishing compensation plans designed to advance an organization’s interests, while at the same time rewarding employees for productive contributions. Our attorneys draft stock option plans, assist employers in establishing procedures for administering stock option plans and advise employers regarding stock option plan compliance. We also assist employers in developing tailored bonus and commission plans that reward employees for contributing to the growth and increased revenue of an organization, as well as assist employers on how to establish and administer welfare and benefit plans that comply with the Employee Retirement Income Security Act of 1974 (“ERISA”).
We also defends clients in disputes arising from compensation agreements and benefit plans. Our litigators have defended employers in a wide array of compensation disputes ranging in complexity from simple claims for unpaid wages, to informal and court litigated stock option disputes; to claims for breach of commission or bonus agreement; to ERISA claims for employee benefits.
For decades, Sheppard Mullin, has been a leader in the antitrust bar. Gordon Hampton, one of the firm’s name partners, was a founder of the Antitrust Section of the American Bar Association. That tradition continues today with a dynamic Antitrust and Trade Regulation practice spanning every aspect of antitrust law. Our practice currently encompasses matters involving mergers and structural issues, criminal grand jury proceedings, international antitrust enforcement, pricing practices, product distribution, joint ventures, class actions based on federal statutes and state unfair competition laws, among many other areas.