Fashion and retail companies can expect to see some of their key legal concerns addressed in the coming months, as the U.S. Supreme Court reconvenes in the fall and the California legislature puts its finishing touches on a major consumer privacy bill set to take effect in January.
At the end of its last term, the high court took up two intellectual property cases that deal with how courts should treat recurring trademark disputes between the same companies, and what it takes for companies to win damages in infringement cases.
In intellectual property disputes, for instance, proving infringement is often just the half of it. The difficult part that usually follows is the effort to show how much in damages the alleged infringement caused. In Romag Fasteners Inc. v. Fossil Inc., the high court will consider the question of whether a company must prove that the infringement in question was willful, or intentional, before it can seek damages in the form of its infringer’s profits.
“When you’re filing a lawsuit for infringement, you want to win for the moral victory of winning, but you’re also looking for damages,” said Jeff Trexler, associate director of the Fashion Law Institute at Fordham University. “The harder it is to get those damages, the less appealing filing a lawsuit will be.”
In Lucky Brand Dungarees Inc. v. Marcel Fashion Group Inc., the court will consider what to do in cases of successive disputes between steadfast rivals, where one side may argue that the other continued to infringe its mark despite a resolution in an earlier case between them, or that its trademarks rights have changed over time.
In October, the high court will also hear three cases that deal with whether LGBTQ employees are protected by Title VII of the Civil Rights Act of 1964, the landmark federal law that bars discrimination on the basis of traits including race, sex and national origin. Specifically, the court will consider whether sexual orientation and gender identity fall under the definition of discrimination “on the basis of sex” under Title VII.
Meanwhile, California’s data privacy bill, which will go into effect in January, would be the first in the nation to give consumers broad protections over their personal data, including whether companies can sell them.
The state’s legislature passed the California Consumer Privacy Act in 2018, taking cues from the European Union’s General Data Protection Regulation, which tightened up privacy regulations to bring them more in line with how companies use consumers’ data. The CCPA would essentially give consumers the ability to say they don’t want their data to be sold, to be able to delete some of their data, and to ask companies to disclose what data they have on them.
The legislation would generally apply to for-profit companies doing business in California that collect personal information from California residents, and have at least $25 million in annual gross revenues worldwide. It would also apply to companies that buy and sell consumer data. Under the new law, companies would have to describe the categories of information they collect from consumers, whom they’re disclosing it to and what they’re doing with it, among other things, said Jennifer Rathburn, a partner at Foley & Lardner LLP.
“Companies have to determine what data they’re collecting from consumers and how are they using it,” said Rathburn.