Fashion and Lifestyle Blog
Labor and Employment
JFK–Bessette: When an Employee Becomes the Headline—How Much Control Do Employers Have Over Public Image?
Ryan Murphy’s dramatization of the relationship between Carolyn Bessette Kennedy and John F. Kennedy Jr. offers an extreme illustration of a workplace issue that employers increasingly face—when an employee’s personal profile begins to impact the brand he or she represents. Long before becoming part of one of the most scrutinized couples of the 1990s, Bessette worked in public relations at Calvin Klein, managing celebrity relationships and helping shape the company’s public image. But as media attention surrounding her relationship with Kennedy intensified, the publicity began to compete with the brand she was responsible for promoting, creating a distraction from the very image she had been hired to help manage. While that story took place decades before social media, it highlights a question employers continue grappling with today: how much control does an employer have over an employee’s public image when it affects the company’s reputation? The answer, in most cases, is that employers have some ability to regulate conduct that legitimately affects the business, but that authority is limited. Employers, understandably, care about how their workforce reflects on the organization. In roles such as public relations, marketing, executive leadership, and client-facing positions, employees function as ambassadors for the company’s brand. When public attention turns toward an employee, whether by media coverage or viral online exposure, that attention can easily spill over onto the employer. That concern is no longer confined to celebrities or high-profile executives. In the digital era, the separation between employees’ professional and personal lives has narrowed dramatically. Social media allows posts, comments, and photographs to circulate widely within hours, and it often makes it easy to connect individuals to their employers. As a result, situations that once affected only public figures can now involve employees at every level of an organization. To manage the negative side of that risk, many companies implement policies addressing employee conduct outside the workplace. These policies include social media guidelines governing how employees reference their employer online and restrictions on public statements that could be perceived as representing the company, and confidentiality provisions protecting internal information. When employees serve as public-facing representatives of the brand, employment agreements may also include reputation or morality clauses allowing employers to respond when an employee’s conduct creates reputational risk. Nonetheless, employers’ authority to control employee conduct has limits. Even when reputational concerns are legitimate, companies must balance their interests against employee rights. For example, some states protect lawful off-duty conduct, which could limit an employer’s ability to discipline employees for activities outside the workplace that have no connection to their jobs. Similarly, under federal labor law, employees have the right to discuss workplace conditions, publicly in some instances, if those discussions constitute protected concerted activity. In addition, employers also must be mindful of discrimination risks. If workplace image policies are enforced against some employees but not others, those decisions can expose the employer to claims of disparate treatment. Consistency in enforcement is therefore critical when reputational concerns arise. The lesson for employers is not that they should attempt to control employees’ personal lives. Rather, employers should focus on clearly defining expectations that relate to legitimate business interests. Well-drafted social media policies, consistent enforcement practices, and thoughtful training for managers can help organizations navigate situations where an employee’s public image intersects with the company’s reputation.
March 30, 2026
Commercial Litigation
D.C. District Judge Narrows Case Between E-Commerce Giants, Temu and Shein
In December 2023, Temu (operated by Whaleco Inc.), a general e-commerce platform specializing in drop-shipping resale goods sold at deep discounts, filed suit against Shein, a similarly structured fast-fashion clothing manufacturer. In their suit, Temu alleged that Shein perpetuates a "mafia-style" scheme to monopolize the fast-fashion market through supplier intimidation, trade secret theft, and abuse of the Digital Millennium Copyright Act. Temu claimed that Shein coerced Chinese suppliers, who provide the overwhelming majority of Temu’s inventory, into filing over 33,000 allegedly baseless copyright takedown notices on Temu’s website in order to disrupt Temu's operations. Shein countersued in August 2024, accusing Temu of encouraging sellers to infringe intellectual property rights, stealing Shein's trade secrets and product designs, and operating a counterfeiting-reliant business model. This battle between Shein and Temu reached a critical moment on September 30, 2025 when a district judge in the District of Columbia dismissed key claims of plaintiff Temu, while allowing Temu’s intellectual property claims to proceed. This recent ruling proved a strategic victory for Shein. The court dismissed Temu's antitrust claims under the Sherman and Clayton Acts, ruling that the alleged anticompetitive conduct occurred in China and fell outside U.S. jurisdiction. The court dismissed Temu's trade secret claims for similar reasons, as the alleged theft of trade secrets occurred overseas. However, the court left Temu's intellectual property claims intact, finding that Temu adequately pleaded infringement of its trade dress by Shein, direct copyright infringement related to Temu’s promotional mobile phone games, and violations of DMCA Section 512(f) for knowingly issuing false copyright takedown notices. This case underscores critical challenges for companies operating in global e-commerce markets – especially as international drop shipping business models become increasingly ubiquitous. In particular, U.S. courts have faced increasing difficulty addressing allegedly anticompetitive conduct by overseas entities whose actions may still be felt in the U.S. Meanwhile, such actors continue to misuse DMCA takedown procedure to gain a competitive edge in the market rather than as an IP protection tool. As both companies face broader regulatory scrutiny worldwide (Temu recently paid $2 million to the FTC to settle INFORM Consumers Act violations), this case may influence how courts evaluate jurisdictional questions in international supply chain disputes and assess claims of DMCA abuse in competitive marketplaces.
October 27, 2025
Sports Entertainment and Media
Neil Young and Backing Band Hit Like a Hurricane, Sued for Trademark Infringement by Luxury Jewelry Brand
Luxury jewelry and apparel brand, Chrome Hearts, LLC has filed a lawsuit against rock legend Neil Young and his current backing band, the Chrome Hearts, in the Central District of California, alleging that both the backing band’s use of the “CHROME HEARTS” phrase and Young's use of "Neil Young and the Chrome Hearts" on merchandise (NYTCH) generates significant consumer confusion in the market, and infringes Chrome Hearts' federally registered CHROME HEARTS trademarks. The complaint asserts five causes of action including, federal trademark infringement, false designation of origin, unfair competition under California law, and common law trademark infringement and unfair competition. Chrome Hearts, which has operated its brand since 1988, and frequently collaborates with well-known musicians, argues that Young's band’s incorporation of the exact CHROME HEARTS word mark on merchandise and promotional materials violates their federally protected rights. In support of their contention, Chrome Hearts alleges salient instances of actual confusion, strengthening the plaintiff’s allegations beyond mere hypotheticals. Per the complaint, multiple apparel vendors have already mistakenly assumed a connection between NYTCH and Chrome Hearts, strongly suggesting the consumer perception of a purported relationship between Chrome Hearts, Young, and his band. The complaint also includes images of specific instances of use of Chrome Hearts designs, or designs evocative of Chrome Hearts’ IP, by third party vendors adorning the t-shirts and other merchandise sold at Young’s concerts, even though Young’s official merchandise does not use Chrome Hearts’ registered designs. The complaint further alleges that Young and Co. had knowledge of the alleged infringement, as Chrome Hearts had sent multiple notice letters regarding this alleged misuse prior to filing suit. Chrome Hearts seeks aggressive relief including temporary, preliminary, and permanent injunctions to halt all use of the NYTCH name and Chrome Hearts marks, mandatory recall and destruction of infringing inventory, and damages including attorney fees. If Chrome Hearts’ allegations make it to trial, we will see whether Neil Young truly has a Heart of Gold, or whether this Old Man’s callous disregard for well-established intellectual property rights were left Down by the River back in 1969.
October 14, 2025
Intellectual Property
Elevating Your Brand: Insights from Bridgerton's Licensing Success
When Bridgerton returns, its influence won’t be confined to the small screen. Now, thanks to a licensing arrangement with Ruggables, you can bring the elegance of Bridgerton into your home. Known for their diverse collaborations with iconic brands like Star Wars, Architectural Digest, Keith Haring, and Jonathan Adler, Ruggables has extended the Bridgerton aesthetic to your home. Since February, Bridgerton rugs have adorned homes, adding a touch of sophistication reminiscent of the beloved period drama. And the collaboration doesn’t stop there – a partnership with Bath & Body Works brought Bridgerton-inspired scents into personal care this past March. Given Bridgerton’s immense popularity, its expansion beyond the small screen should come as no surprise. In fact, it is following a path well-worn by other entertainment giants: licensing. Licensing can be a powerful tool for expanding a brand’s footprint, yet it carries significant risks. While a well-executed licensing program, such as the one that accompanied the release of last summer’s Barbie release, can create the illusion of ubiquity and fuel a seemingly insatiable demand for branded merchandise, it’s essential to recognize that success in licensing is not easily achieved. Behind every triumph lies diligent effort and meticulous planning. The initial step involves figuring out which products seamlessly complement the brand. Bridgerton’s meticulous attention to detail and well-appointed sets, such as Danbury House or Aubrey Hall, coupled with the buzz surrounding the show’s aesthetic, make a collaboration with Ruggable an ideal choice. This partnership effortlessly extends the visual appeal of the show into the homes of its audience. Next up is the crucial step of ensuring that the brand to be licensed is protected, which involves filing trademark applications to protect the mark associated with the goods slated for licensing. Notably, Netflix owns a U.S. trademark registration for BRIDGERTON covering entertainment services. It has a pending application covering an array of goods and services (e.g., cosmetics, electronic devices, jewelry, handbags, home linens, dishware, clothing, toys, and food). However, it is worth noting that rugs are notably absent from this coverage. One of the most critical parts of licensing is finding a partner you can trust (such as Ruggable, which boasts licensing arrangements with other major brands, likely facilitating its collaboration with Bridgerton). Why? Through licensing, you are giving up some control over your brand. It’s imperative to have confidence that your partner will exercise the same care about your brand as you do and that they will work hard to make the license successful. Plus, ensuring they fulfill their obligations under the license, such as making timely payments and adhering to ethical standards like avoiding child labor, is crucial. Remember, your licensing partners are a reflection of your brand; any missteps on their part could tarnish your reputation, especially in the eyes of discerning observers like Lady Whisteldown. Of course, no one has a crystal ball, and unforeseen events can create issues. That is precisely why a well-drafted license agreement is essential to any licensing effort. This agreement should comprehensively outline all the pertinent business terms, including territory, duration, channels of trade, licensed products, royalty rates, and more. Additionally, it should have mechanisms for termination, should such action become necessary. If, for some reason, the license arrangement does not work out, it is the terms of the license agreement that will control the parties’ relationship moving forward. From a brand owner’s point of view, the quality control provisions within a license agreement hold paramount importance. There are several compelling reasons for this. Firstly, the brand owner’s primary objective is to uphold the brand’s reputation by ensuring that licensed products maintain high-quality standards and reflect the brand’s core values. Consequently, license agreements often grant brand owners the authority to approve prototypes and production items. It's imperative for brand owners to promptly provide approvals to avoid disrupting marketing plans. Secondly, failure to exercise quality control could result in what is known as “naked licensing,” which can result in the potential forfeiture of their trademark rights. While a good quality control provision in the license agreement serves as a preventative measure to a naked license situation, the brand owner’s active monitoring of product quality is essential. After all, consumers seeing a brand on a product will assume that the product meets certain standards of quality. And as you know, dear reader, Queen Charlotte can be exacting. This year’s diamond of the licensing season could well be the rug collaboration. If you are seeking to elevate your brand to new heights of success in the upcoming season, I’m here to provide professional guidance in crafting and executing a dynamic licensing program. Let’s work together to ensure your brand shines brighter than ever before in the competitive world of licensing.
April 23, 2024
Intellectual Property
Upcycling, Customization, and Trademark Infringement
With its potential environmental and sustainability benefits, upcycling is a popular trend. Likewise, product customization, allowing consumers to express their own style, is also popular. As illustrated by two cases involving watches, both can give rise to claims of trademark infringement and counterfeiting. Rolex Watch USA, Inc. v. BecekerTime, L.L.C. BeckerTime is a seller of decades-old preowned watches containing Rolex parts. BeckerTime identifies such watches as “Genuine Rolex,” but they include both Rolex and non-Rolex parts. Before taking action, Rolex purchased two watches from BeckerTime. BeckerTime added diamonds as hour markers to the refinished watch dials by drilling holes in the dials and inserting aftermarket diamonds or other stones and settings in the holes. As part of the refurbishment process, BeckerTime strips the dial down to bare metal, and once the refurbishment is complete, it reapplies Rolex’s trademarks. When selling the modified watches, BeckerTime lists a retail price with a comparison price labeled as “New MSRP (if all factory)”— even though Rolex does not and has never sold a similar watch. Additionally, BeckerTime adds various non-Rolex parts (such as bezels with added diamonds, bands, or straps). BeckerTime issues an “Authenticity Guarantee” for each watch it sells and has held itself out as a “Certified PreOwned Watch Dealer” with a “Rolex Certified Master Watchmaker” even though Rolex has not certified BeckerTime or its watchmaker. Moreover, the parts added by BeckerTime are integral to the function of the watches and do not bear any markings indicating that BeckerTime is the source of the watches. To be sure, BeckerTime did indicate on its website that the replacement parts were not genuine Rolex parts, that the alterations it makes would void any Rolex warranty, and that BeckerTime is not affiliated with Rolex. That was not enough to stave off legal action. Rolex sued BeckerTime for trademark counterfeiting and trademark infringement in September 2020. After a bench trial, the court found that BeckerTime infringed Rolex’s trademark by counterfeiting Rolex watches and issued an injunction precluding BeckerTime from using Rolex’s trademark in specific ways. Both parties appealed, and the court of appeals largely upheld the injunction. The court of appeals explained that “BeckerTime does more than recondition or repair vintage Rolex watches.” According to the court of appeals, BeckerTime sold watches that were materially different from those sold by Rolex; the watches could not be called genuine Rolex watches. The court of appeals also pointed out that customers were confused as to whether the watches were entirely genuine Rolex and that BeckerTime had received complaints about the quality of the watches. As a result, the court of appeals affirmed the injunction, although it did instruct the lower court to clarify one point. Hamilton Intern. Ltd. v. Vortic LLC Like the BeckerTime case, this case also involved watches. The outcome was very different. Robert Thomas Custer founded Vortic and endeavored to make a watch that would be entirely made in America. After learning that no active company in the U.S. made watch movements, Vortic began salvaging and restoring parts from antique American-made pocket watches manufactured in the late 1800s and early 1900s. The parts, which included antique parts from watches bearing Hamilton’s trademark, were then encased in new wristwatches. One of the watches Vortic made was named “The Lancaster,” after the city where the Hamilton Watch Company was originally based. The Lancaster features restored antique pocket watch movements and front dials made by Hamilton. The front dial bears the HAMILTON trademark. The watch strap, case, and various internal parts were either manufactured by Vortic or came from modern U.S. sources. The back of the watch has a glass cover through which the watch parts, some of which bear the HAMILTON trademark, can be seen. The cover is surrounded by a metal ring with Vortic’s name and serial number for the watch, as well as the watch’s name. Buyers received the watch in a wooden box with Vortic’s name and a booklet that displayed the Vortic logo and explained its manufacture and restoration process. The box also included an authentication card with Vortic’s name and serial number, which was signed by the watchmaker. Vortic’s advertisements emphasized the antique and authentic nature of the watch’s parts. In July 2017, Hamilton sued for trademark infringement and counterfeiting. After a bench trial, the court ruled in favor of Vortic, finding that there was no likelihood of customer confusion. Hamilton appealed, and the court of appeals affirmed the lower court’s ruling. The court of appeals pointed out that Vortic took genuine parts from Hamilton watches, refurbished and repaired them, and modified them into a wristwatch and that consumers would view the watch as an antique pocket watch modified into a wristwatch rather than as an entirely new product. Further, the court of appeals explained that Vortic took many steps to disclose that it was not affiliated with Hamilton and that its watch used refurbished original parts. This could be seen in advertisements, the marks on the watch itself, and the fact that the watches themselves are presented to consumers as restored antique pocket watch parts modified into a wristwatch. The court of appeals contrasted this with other cases (including cases brought by Rolex) where there was no disclosure of the changes made to the watch and pointed out that there was no evidence of consumer confusion in the record. So, What Is Permitted? Anyone seeking to reuse a previously manufactured product or parts from a previously manufactured product should make sure to disclose to consumers exactly what has been done. Further, it is important to make clear that there is no affiliation between the upcycler/customizer and the original manufacturer. These seem to be the key differences between the Rolex decision and the Vortic decision. However, strict compliance with those requirements does not mean that reusing a previously manufactured product cannot give rise to a claim for trademark infringement. One thing that does seem settled is that customization of a product purchased by a consumer is permitted so long as the customized product is intended for the consumer’s own use and not for resale (in the BeckerTime case, it appears that BeckerTime was customizing watches for sale, rather than in response to consumer requests). If you are contemplating reusing someone else’s products or are concerned that a third party reusing your products will result in consumer confusion, please feel free to contact me.
February 14, 2024
Intellectual Property
From Palette to Protection: When Does Color Function as a Trademark?
Back when my daughter was in third grade, parents were invited to her classroom to talk about their jobs. I talked about trademarks and brands, discussing products they would appreciate, like HOT WHEELS miniature cars and AMERICAN GIRL dolls. At one point, I told the students that a color can be a trademark and that Mattel claims the right to the color pink as a trademark associated with their BARBIE products. A little girl named Emma spoke up and said, “That doesn’t seem fair that just one company can use a color.” What Emma didn’t know was that she isolated the same issue that the US Supreme Court had considered back in the 1990s when the Court held, in a case involving green-gold dry cleaning machine pads, that a company could claim color as a trademark, but only after years of exclusive use and evidence that the public associates the color with a single source. (By the way, Emma is now in law school.) So what does it take to be able to claim that a color is exclusively for use by one source? First, to be clear, even when a company is able to claim color as a trademark, its rights will only be limited to the goods or services for which the color is used or closely related goods/services. So while Tiffany could stop another jewelry company from using its robin’s-egg blue color, Tiffany would not be able to prevent, say, an HVAC installation company from using this shade. To be eligible for trademark protection, a color must be: Non-functional: The color should not serve a functional purpose related to the product or service. In other words, it should be purely aesthetic. Recognized by the public: The color must have gained recognition and distinctiveness in the minds of consumers. Examples in Advertising: UPS’s Iconic Brown One of the most famous examples of a company successfully using color as a trademark is United Parcel Service (UPS). Instant Recognition: UPS’s brown delivery trucks are instantly recognizable, and the color has become synonymous with the brand’s reliable package delivery services. Consistent Branding: UPS consistently uses brown in its advertising, packaging, and uniforms. This uniformity reinforces the brand’s image and helps it stand out in a crowded market. Promotional Campaigns: “What Can Brown Do For You?” UPS has run advertising campaigns centered around its brown color, emphasizing the reliability and trustworthiness associated with the color brown. Challenges and Legal Considerations While companies like UPS have successfully used color as a trademark, it’s important to note that securing trademark protection for a color can be challenging. Courts often require extensive evidence of distinctiveness and consumer recognition. Additionally, competitors may challenge the validity of color trademarks, arguing that the color is functional or not sufficiently distinctive. Conclusion Color can be a powerful tool for branding and marketing, and some companies, like UPS, have effectively incorporated it into their trademark strategy. However, the legal requirements for securing and defending a color trademark are rigorous. Businesses considering color as a trademark should seek legal counsel to navigate the complexities of trademark law and protect their unique brand identity. If you would like to discuss trademark protection for colors, please reach out to me.
September 26, 2023
Intellectual Property
Trade Dress at a Glance: Protecting the Look and Feel of a Product
When safeguarding their consumer reputation, most companies recognize the value in their brand names, logos, slogans, and their associated goodwill and the importance of protecting those assets. However, many neglect to protect their trade dress: the look and feel of a company’s product, packaging, or services. Trade dress can be a powerful source-identifying tool: rather than protecting a specific name or logo, trade dress is about the “overall design and appearance” of a product. It can include elements that may not be protectable on their own. Nora Beverages, Inc. v. Perrier Group of Am., Inc., 269 F.3d 114, 118 (2d Cir. 2001). Trade dress can come in many forms, and courts have upheld trade dress protection in colors, store layouts, and website designs. The U.S. Supreme Court recently referenced trade dress as part of its discussion on whether elements of a dog squeaky toy infringed on several Jack Daniel’s trademarks — including their styled white filigree and distinctive square bottle. More on that decision and its implications on First Amendment protections can be found in our previous client alert here. This article focuses instead on how companies can incorporate trade dress protections into their intellectual property portfolio. The Elements of Trade Dress To qualify as a protectable trade dress, the product packaging or design must meet two main criteria: it must be inherently distinctive (or have acquired a secondary meaning that makes it source-identifying) and be nonfunctional. “Distinctiveness” can be a nebulous term, and courts consider the distinctiveness of product design and packaging differently. The Supreme Court has held that a product’s design is not inherently distinctive without acquiring secondary meaning that ties it to a brand. Wal-Mart Stores, Inc. v. Samara Bros., 529 U.S. 205, 212 (2000). A product’s packaging, however, or the overall design elements of a restaurant or retail store (which the Court viewed as being more akin to packaging than product), can be inherently distinctive. In instances where an element of package design is particularly unique or fanciful or when several commonplace elements are taken together to make a whole, trade dress may lead a consumer to associate it with a particular company or brand. Some packaging design elements are distinctive enough to qualify as protectable trade dress in their own right. One of the most famous examples is the design of a glass bottle of Coca-Cola; without any additional labeling or context, the average consumer can immediately identify the brand behind it and the product contained within it. Some characteristics, like specific colors, may not be inherently distinctive at their outset but can acquire a secondary meaning through their use — such as Tiffany & Co.’s distinct blue box. Trade dress looks at the entirety of a design. Even commonplace elements without a solid secondary meaning, such as the examples above, can be part of a distinctive trade dress. Grouped together, such elements can form a unique whole, and the more elements used to establish the overall look and feel, the more likely a trade dress is to be protected. For example: in 2013, Apple was able to secure protection for its retail locations’ overall look and feel. Taking the elements of their store design as a whole, Apple conveyed an overall image that was distinct and identified their brand. In some cases, a trademark registered and protected in its own right gained more robust protection through its incorporation into trade dress. In Gucci Am., Inc. v. Guess?, Inc., 868 F. Supp. 2d 207, 248 (S.D.N.Y. 2012), Guess was found not to have infringed on one of Gucci’s trademarked logos with their similar mark, but the Court found that when the logos were both used in a similar brown-on-beige product design, it was a step too far. Non-functionality is the other essential element of trade dress. Functionality, in this case, covers elements necessary for product use and those that affect cost or quality. When the features that make the product useable and the aesthetic elements that allow a customer to identify the source are one and the same, courts are reluctant to classify those features as trade dress. Visually distinct components that are also protected by a utility patent, for example, are generally not protected as trade dress. TrafFix Devices, Inc. v. Mktg. Displays, Inc., 532 U.S. 23, 29 (2001). However, the inclusion of functional elements in a trade dress does not necessarily render it unprotected. The hands and dial of a watch are undoubtedly useful, but their aesthetic qualities are trade dress. Cartier, Inc. v. Sardell Jewelry, Inc., 294 F. App’x 615 (2d Cir. 2008). A functional aspect that incidentally creates a distinctive feature (such as a decorative embossment made by a patented process) can also be protected trade dress. McAirlaids, Inc. v. Kimberly-Clark Corp., 756 F.3d 307, 312 (4th Cir. 2014). Taking Appropriate Action Trade dress is protected by federal law, and companies concerned that a competing product is imitating the look and feel of their trade dress can sue under the Lanham Act. Although it is possible to protect trade dress without registering it with the U.S. Patent and Trademark Office first, an ounce of prevention is worth a pound of cure. Taking the proactive step of registering a trade dress makes it easier for companies to enforce their rights: for example, 15 U.S.C.A. § 1125(a)(3) states that a person who seeks to protect an unregistered trade dress has the burden of proving the elements they wish to protect are nonfunctional. Registering their trade dress on the principal register can save a company that burden. Companies, particularly the design and marketing departments, should consult with their trademark attorneys early in product development to avoid unintended infringement pitfalls in their products and packaging and to determine if registering their trade dress is practical and serves their specific needs. This summary of legal issues is published for informational purposes only. It does not dispense legal advice or create an attorney-client relationship with those who read it. Readers should obtain professional legal advice before taking any legal action.
July 20, 2023
