Some of the most significant trials of the year

In 2022, a number of new fashion, retail and technology lawsuits – and developments in previously filed cases – stood out in the crowded litigation landscape as they point to trends wider within these spaces and other issues worth watching. Among these are cases that stem directly from the startling onslaught of Web3 technology, including non-fungible tokens (“NFTs”). The rise of Web3 – a medium that mixes virtual reality, augmented reality, social media, video and other technological components – has led to an incipient series of lawsuits, a pattern that will almost certainly continue in a foreseeable future as fashion brands (and others) test the waters of the metaverse in order to connect with consumers and generate revenue from new streams.

Beyond the virtual world, privacy concerns, reverse confusion, and the marketing of companies and/or their offerings as sustainable or otherwise ESG-friendly have been at the center of a number of lawsuits in 2022. In Meanwhile, high-profile celebrities have landed on the receiving end of litigation for allegedly helping to promote projects/entities – including the now bankrupt crypto exchange FTX – without disclosing the nature of their involvement (c i.e. the compensation they received in exchange for their endorsements). Yet competition was the central theme of at least a few notable new lawsuits, such as the trade secret lawsuit Cartier filed against LVMH-owned Tiffany & Co., as the latter group seeks to bolster the robustness of its hard luxury. offerings.

With the above in mind, here’s a look at some of the many interesting and notable lawsuits and legal developments we’ve seen in 2022…

1. The Hermès battle against MetaBirkins

In January 2022, Hermès filed a lawsuit for trademark infringement, federal trademark dilution, false designations of origin, cybersquatting, misappropriation and unfair competition against Mason Rothschild, the individual behind the collection of 100 MetaBirkins NFTs. Hermès claims that as part of its sale of the NFTs, which are linked to digital images of fur Birkin bags, Rothschild simply “teared up[s] of the famous brand BIRKIN d’Hermès by adding the generic prefix “meta”.

Rothschild pushed back against Hermès’ claims, arguing (under roger) that his “whimsical depictions of fur-covered Birkin bags and his identification of his works as ‘MetaBirkins’ are artistically relevant and do not explicitly mislead as to their source or content.” The parties are due for trial in January 2023. In the meantime, you can find a Hermes c. Rothschild timeline here.

2. Nike Wages Suit Over StockX NFTs

Nike filed a lawsuit against StockX earlier this year, alleging the marketplace site is accused of trademark infringement and dilution, as well as infringement and misleading advertising, in connection with its image-related NFT offering. and physical versions of Nike shoes – albeit without his permission. To make matters worse, Nike claims that StockX “sells these NFTs at heavily inflated prices to unsuspecting consumers who believe or are likely to believe that these ‘investable digital assets’ (as StockX calls them) are, in fact, licensed by Nike.”

StockX responded to Nike’s complaint, saying the NFTs at issue are little more than “claim tickets” or “digital receipts” used to “track ownership of a specific physical Nike product that StockX has authenticated to using its ‘proprietary multi-step authentication process.'” – placing the sale of the sneakers (and corresponding NFTs) firmly within the domain of the first-sale doctrine. (What are NFTs and where their value comes from are just some of the new questions currently before the courts.)

And in another NFT-centric trademark lawsuit example, Yuga Labs vs. Ryder Ripps is still ongoing.

Some of StockX's NFT Vault

3. Sustainable Marketing Lawsuits

H&M cited in not one but two lawsuits in 2022 for the marketing of its “Conscious” collection. In the first proposed class action lawsuit, which was filed with SDNY in June, the plaintiff alleges that H&M created “an extensive marketing program to ‘green’ its products” in order to portray them “as environmentally friendly while ‘They are not”. , engaging in deceptive acts/practices and false advertising. Part of H&M’s overall effort comes in the form of its “misleading” environmental scorecards, which are displayed prominently on “green hangtags, in-store signage and online marketing”.

The Swedish fast fashion giant was sued again in November (this time in federal court in Missouri) for allegedly peddling a “false” sustainability narrative by “marketing and labeling products [as] ‘Conscious Choice'” even though they “are not made from sustainable and environmentally friendly materials”. H&M’s marketing – which aims to ‘increase profits and gain an advantage over competitors acting lawfully’ – serves to ‘mislead consumers’ like the complainants, who say they would not have purchased the products or would not have paid the prices they paid if they had known the true nature of the goods.

Meanwhile, The Coca-Cola Company has escaped false publicity brought against it by a group of environmental activists, who accused the beverage giant of greenwashing by presenting itself as “a sustainable and environmentally friendly company, well that it is one of the biggest contributors to plastic pollution in the world.” In a victory for companies seeking to make forward-looking and/or “generic” sustainability/ESG statements, a Washington, D.C. Superior Court judge has determined that the bulk of Coca-Cola’s claims are not subject to prosecutions, because they are “general”. , aspirational corporate ethos” that do not include “measurable promises or data points” that can be proven to be inaccurate.

4. The Wavy Babies Affair

In the wake of the Nike vs MSCHF last year, the slash-based Brooklyn-based sneaker maker was sued in April by Vans, who accused it of willfully infringing its trademark rights on the 40-year-old OLD SKOOL shoe. MSCHF has since asserted that its offerings, including the Wavy Baby sneaker, “are not mere consumer goods,” but rather “expression protected by the First Amendment.”

MSCHF and Vans went to the United States Court of Appeals for the Second Circuit in September, arguing over the preliminary injunction put in place this spring to stop MSCHF from promoting its allegedly infringing Wavy Babys by displaying the shoes on its website, its mobile application and in art exhibitions, among others.

Following the closing arguments, which took place in September, the United States Court of Appeals for the Second Circuit stayed further proceedings in the case until SCOTUS issued an opinion in Jack Daniel’s c. VIP, a trademark case that also hinges on whether a consumer product (er, pet) is an expressive work eligible for First Amendment protection. In the “Bad Spaniels” case, that product is a dog toy resembling a bottle of Jack Daniel’s whiskey, which VIP Products says should be protected against infringement and liability for dilution due to its humorous nature.

Another Vans lawsuit to watch: The trademark case of The sneaker co. against Walmart.

MSCHF's Wavy Baby sneakers

5. The “high jewelry” clash between Cartier and Tiffany & Co.

In a case initiated in February, Cartier claims that Tiffany & Co. tried to obtain secret information from two former employees in order to boost its “high jewelry” division. Tiffany & Co. later urged a New York Supreme Court judge to dismiss allegations of trade secret misappropriation, unfair competition and tortious interference in what the LVMH-owned brand calls a ‘condemned’ attack by Cartier, “calibrated for maximum publicity”.

The lawsuit against Richemont-owned Cartier comes as Tiffany & Co. is currently in the midst of a sweeping overhaul since being placed under the LVMH umbrella in a $15.8 billion deal of dollars closed last year, and amid a larger effort by LVMH to bolster its hard luxury offerings.

This is a short excerpt from TFL’s 2022 Year in Review, which was released exclusively for TFL Enterprise subscribers, and dives into everything from deals that further cemented the sales segments to the retail and resale over the past year to the rise in ESG-focused actions from regulators. and consumers – and the growing adoption of web3 technologies by the fashion and luxury goods industries to discern current trends and identify critical themes to watch in 2023. Learn today about how to subscribe to an Enterprise subscription and access our content.

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