Recent client alerts issued by Gibson Dunn touch on a hodge-podge of issues that will be of interest to fashion and retail companies:
1) On January 15, 2015, the U.S. Court of Appeals for the Federal Circuit issued a decision that updates the test to determine when companies will be able to enforce their rights in trademarks that incorporate geographic terms. In brief, the court reversed a determination that a mark that incorporated the term “Newbridge” was merely descriptive of the source of the goods. The court concluded that the mark primarily identifies a particular company, as opposed to the region where the goods were made. The case could have implications for fashion brands that use geographic terms, like DKNY, Club Monaco, Southpole, North Face, or Swatch (Swiss Watch), but all those brands will be able to marshal evidence that consumers “primarily” associate those terms with a particular company. A fuller discussion of the decision is available here.
2) On January 27, 2015, the Federal Trade Commission released a report on the "Internet of Things," which refers to everyday objects that are connected to the Internet and send and receive data. Examples of devices attached to the Internet of Things include any Internet-enabled object--other than computers, smartphones, or tablets. The report (summarized here) suggests potential liability for sellers of Internet-enabled devices that do not plan for, minimize, and protect the data that they collect about their customers. Any brick-and-mortar retailers who plan to use technology to interact with their customers’ wearable technologies, like Google glasses, smart watches or fitness bracelets, should be particularly attentive to the FTC’s recommendations.
3) On February 3, 2015, the U.S. Securities and Exchange Commission released a risk alert (summarized here) laying out the Commission’s expectations as to the steps that publicly traded companies should be taking to address cybersecurity. Fashion and retail companies that are subject to SEC regulation, of course, are not immune from this guidance.
4) Also on February 3, 1015 Gibson Dunn partners Kelly S. Austin, Peter Gray, Joel M. Cohen provided an update on FCPA Trends in the emerging markets of Asia, the Middle East, and Africa. Among other things, the updated discussed recent enforcement actions against fashion companies like Avon that have attracted scrutiny for an alleged failure to prevent unlawful payments by a local executive in China. All companies with operations in emerging markets will want to be informed of these developments.