Category Archives: Fashion and Retail

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V-I-C-T-O-R-Y for the Fashion Industry: SCOTUS Establishes Uniform Test for Protection of Artistic Works Applied to Apparel

The overall design (such as the shape and cut) of a garment, bag or shoe is not protectable under current U.S. Copyright law because such items are considered “useful articles.” However, Section 101 of the Copyright Act provides protection for the “pictorial, graphic or sculptural features [of a useful article] that can be identified separately … Continue Reading

Oregon Attorney General Announces $545,000 Settlement with Retailer

750px-Flag_of_Oregon_svgThe Oregon AG recently announced a $545,000 settlement with the Vitamin Shoppe over allegations that the store violated Oregon state law by selling dietary supplements containing ingredients that FDA has deemed unsafe or unlawful. The new settlement agreement places significant burdens on the Vitamin Shoppe to monitor developments on ingredient status. The burdens are the same regardless of whether the … Continue Reading

More Regulators Focus on Price Comparisons

Yesterday, the Virginia Attorney General announced that it reached a settlement with Hobby Lobby over the retailer’s price comparisons. According to the press release, Hobby Lobby advertised discounts compared to “other sellers,” but failed to disclose the basis of comparison, thus making it difficult for consumers to determine whether they were getting a good deal. … Continue Reading

Ad Law News and Views Newsletter

http://ecomms.kelleydrye.com/rv/ff002e6c28b5920e40180549f84cb2de5ebc7e88Did you know Kelley Drye’s Advertising Law practice produces a newsletter, Ad Law News and Views, every two weeks to help you stay current on ad law and privacy matters? Click here to access our Publication Sign Up and select Advertising and Marketing to subscribe. Find contents from the latest issue below: Click here to view with … Continue Reading

Announcing the Advertising and Privacy Law Webinar Series

Webinar SeriesPlease join Kelley Drye in 2017 for the Advertising and Privacy Law Webinar Series. Like our annual in-person event, this series will provide engaging speakers with extensive experience and knowledge in the fields of advertising, privacy, and consumer protection. These webinars will give key updates and provide practical tips to address issues faced by counsel. … Continue Reading

NAD Decision on Savings Claims Holds Valuable Lessons

The NAD recently issued a decision involving savings claims that holds some valuable lessons for advertisers. Lowes ran TV ads advertising that consumers could get “20% off appliances $396 or more.” Not all appliances in that price range were discounted at 20%, though, and a consumer complained to the NAD, arguing that the retailer had … Continue Reading

CFPB Issues Final Rule to Regulate Prepaid Products; Prepaid Providers Given One Year to Comply

Yesterday the CFPB released a final rule that will impose a variety of consumer protection requirements on prepaid products, such as requiring specified disclosures before product purchase and compelling financial institutions to limit consumer losses for lost or stolen cards.  The CFPB had previously released a proposed rule, which we discussed here, and the final … Continue Reading

FTC Requests Auditors’ Data on PCI Data Security Assessments

Earlier this week, the FTC issued orders to nine credit card and payment security auditors in an effort to gain insight into data security compliance auditing and its role in protecting consumers’ information and privacy. The orders contain detailed questions concerning the assessment process for Payment Card Industry Data Security Standard (“PCI DSS”) compliance, including the policies … Continue Reading

Kohl’s Kicks Putative Class Action Suit Alleging Deceptive Sale Prices

On February 1, 2016, the U.S. District Court for the District of Massachusetts dismissed  a consumer class action alleging that Kohl’s Department Stores advertises false sale prices. The plaintiff in Mulder v. Kohl’s Department Stores, Inc., 15-cv-11377 (D. Mass.), asserted causes of action for fraud, breach of contract, unjust enrichment, and violations of the Massachusetts … Continue Reading

Lawsuit Over Website Accessibility Highlights Importance of Compliance

ADA KeyboardLast month, Reebok was hit with a proposed class action alleging that the company’s website violates the Americans with Disabilities Act because it is not accessible to the blind. The plaintiffs argue that Reebok.com contains “thousands of access barriers” that make it difficult —if not impossible — for blind customers to use the site. Because … Continue Reading

Office Depot Agrees to Pay $3.4 Million CPSC Civil Penalty

On May 27th, the Consumer Product Safety Commission (“CPSC”) announced that Office Depot agreed to pay a $3.4 million civil penalty for allegedly failing to report potential safety issues for two models of office chairs. According to the CPSC, Office Depot received 33 reports concerning the Quantum model and 153 concerning the Gibson model, with … Continue Reading

California Enforces Transparency in Supply Chains Act

The Attorney General of California has recently sent letters to more than 1,700 companies notifying them that the State is enforcing the California Transparency in Supply Chains Act, which became effective in 2012.  The Act requires large retailers and manufacturers doing business in California to disclose “conspicuously” on its websites “efforts to eradicate slavery and … Continue Reading

FTC Settles with Retail Tracking Company that Made Privacy Policy Promises It Couldn’t Keep

Last week, the Federal Trade Commission announced its first settlement with a retail tracking company, resolving allegations that Nomi Technologies, Inc., a micro-location platform that provides analytics services to retailers through its product “Listen,” failed to abide by several promises it made in its privacy policy. Under the terms of the agreement, Nomi is prohibited … Continue Reading

CFPB Proposes Rule on Prepaid Products to Extend Certain Credit Requirements and Mandate Disclosures

The Consumer Financial Protection Bureau released last week a proposed rule that would impose an array of new requirements on prepaid accounts. The proposed new definition of “prepaid account” would include general purpose reloadable cards, electronic or mobile accounts that can store funds such as PayPal accounts, payroll cards, and certain government benefit cards, but … Continue Reading

The Year of the Breach: California Attorney General Releases 2013 Data Breach Report

On Tuesday, the California Attorney General released the second annual data breach report, summarizing the 167 data breaches reported to the Attorney General’s office in 2013, and providing privacy and security recommendations for businesses. According to the report, the retail, finance, and healthcare industries reported over 60 percent of the 167 breaches, over half of … Continue Reading

Retailers Face Legal Challenges Over Advertising Prices

Retailers have had a tough year when it comes to advertising prices. In January, a California court issued a multimillion dollar penalty against Overstock.com, after determining that the company advertised discounts in a misleading manner. Since then, retailers across a range of industries have been dragged into costly lawsuits and regulatory investigations involving similar issues. … Continue Reading

FTC Asks (Too?) Much of Retailers

The FTC recently announced that it sent warning letters to five “major retailers” selling athletic mouth guards on their websites. According to the FTC, the retailers’ websites included concussion claims that may be deceptive. The FTC urged the recipients of the letters to ensure that all concussion claims appearing on their sites are backed by … Continue Reading

Smooth Sale-ing: Jos. A. Bank Wins Before Seventh Circuit

Late last week, the Seventh Circuit affirmed the dismissal of a putative class action alleging that Jos. A. Bank advertises its normal retail prices as temporary price reductions, in violation the Illinois Consumer Fraud and Deceptive Business Practices Act. The company’s pricing practices, the plaintiff argued, constituted a “fraudulent sales technique.” Illinois law, like most … Continue Reading

NY Attorney General Secures Settlement Over Misleading Sales

Over the past year, there has been a​n​ increase in the number of lawsuits and regulatory investigations ​involving how retailers advertise discounts and sales. In these cases, challengers have generally alleged that the retailers misled consumers into believing they’re getting a good deal during a sale, when the sale price is actually the price at … Continue Reading

Members of Congress Target Outlet Mall Pricing

Last Thursday, four members of Congress sent a letter to the FTC Chairwoman expressing concerns that consumers are being deceived by pricing at outlet stores and asking the FTC to investigate potential violations of Section 5 of the FTC Act and the FTC’s Guides Against Deceptive Pricing. They noted that, unlike the historical practice of using outlets to … Continue Reading

In Pricing Case, California Court Determines Meaning of “Free” Shipping

In the Overstock.com case described in the post yesterday, the plaintiff also argued that Overstock’s representations that shipping was “free” or “only $2.95” violated California’s False Advertising Law because the company factored the full cost of shipping into the underlying product price. The court ruled in Overstock’s favor, determining that the claim was “nonsensical,” and … Continue Reading
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