The legal and commercial forces shaping retail – analyzed every Friday
Today’s read: 6 minutes
Retail is shaped, in no small part, by how companies support what they say – about design, identity, origin, and the systems through which goods are sold and delivered.
This means that across trademark, consumer protection, and platform liability, legal risk is tied to how companies describe their products – and whether those descriptions hold up. This week’s developments bring that dynamic into sharper focus across several fronts.
>In design-driven categories, widespread copying can both reinforce consumer recognition and undermine the substantially exclusive use needed to support trademark function.
> The sale of an eponymous brand can hinder a founder’s legal right to use his/her name, with contractual terms dictating future commercial use.
> Regulators are heightening their scrutiny of “Made in” origin labels, as well as the supply chains behind them.
> As commerce runs through platforms and intermediaries, liability is being shaped less by a single actor and more by how systems are structured and controlled.
> External shocks are increasingly reframed as governance issues, shifting scrutiny to how management anticipates and responds.
Naghedi continues its push to register its woven neoprene pattern as a trademark, arguing that widespread “dupes” support a finding of acquired distinctiveness. The USPTO has taken the opposite view, treating similar products in the market as evidence that the design is commonly used and therefore not “substantially exclusive,” as typically required to establish acquired distinctiveness.
That tension is particularly pronounced in fashion. While evidence of copying can support distinctiveness, trademark law still requires that a mark function as a source identifier tied to a single commercial origin. Naghedi attempts to address that by asserting priority and characterizing third-party products as imitations that followed its own use. Even so, the volume of similar goods in the market may still cut against exclusivity, regardless of intent.
>> The takeaway: In design-driven categories, widespread imitation can support recognition, but it can also undermine the exclusivity required for trademark protection.
Selling an eponymous brand can mean relinquishing rights to use one’s own name – a reality at the center of Estée Lauder Companies’ newly filed U.K. case against Jo Malone, her brand Jo Loves, and Zara over a fragrance collab. The dispute turns on Malone’s use of her name in Jo Loves x Zara product descriptions and marketing materials, including references to her as the creator of the fragrances – conduct that ELC alleges exceeds the scope of the parties’ agreement and trades on the goodwill of the Jo Malone brand that it acquired in 1999.
The case is not unique. In 2016, the U.K. High Court barred Karen Millen – co-founder of the Karen Millen label – from using her name or any confusingly similar variation in connection with clothing and homeware following the sale of the business. The court held that the contractual restrictions extended beyond apparel to adjacent categories on the basis that consumers would expect such brand extensions, and that Millen had consented to the company’s trademark rights in her name, including future registrations tied to related goods.
More recently, similar issues have surfaced in the employment context. In the U.S., a dispute between Hayley Paige Gutman and JLM Couture centered on contractual restrictions governing the use of her name and associated social media accounts, underscoring how control over a designer’s identity can extend beyond trademarks to encompass digital assets and the commercial value of personal branding.
>> In practice: These cases underscore how a designer’s name – once commercialized and transferred – can be treated as legally distinct from its originator, subject to contractual and trademark constraints that limit how, and in some cases whether, it can be used commercially going forward.
The standard behind the “Made in America” label – which requires that products be “all or virtually all” made in the U.S. – is difficult to satisfy in industries reliant on global supply chains. Now, the Trump Administration is signaling an effort to ramp up enforcement and redirect scrutiny over unsubstantiated claims.
The administration’s new executive order places particular emphasis on digital marketplaces, where they say third-party sellers often use U.S.-origin claims to appeal to consumers. In doing so, the order raises the prospect of platform liability for failing to monitor or verify those claims.
“Made in USA” are not the only ones coming under the microscope. “Made in Italy” is facing heightened scrutiny, with a growing number of fashion companies placed under judicial supervision over alleged labor abuses tied to subcontracted production. Together, these developments reflect a broader shift: regulators are increasingly examining not only the accuracy of origin claims, but the supply chains and production practices that underpin them.
>> The takeaway: Origin claims have long carried legal risk, but regulators are now scrutinizing them more aggressively, with a growing focus on supply chains and substantiation.
Dior’s proposed settlement of litigation tied to a 2025 data breach reflects a broader shift in how risk is distributed across modern retail. As retail operations continue to run through third-party CRM platforms, vendors, and external service providers, data exposure often stems from systems outside retail companies’ direct control, complicating how responsibility is allocated when things go wrong. While brands remain the face of consumer relationships, the underlying infrastructure is often fragmented across multiple intermediaries.
A similar allocation question is playing out on the trademark front. In a case recently lodged by Estée Lauder-owned brands, Walmart is facing claims tied to counterfeit goods offered up on its marketplace by third-party sellers, with the plaintiffs pointing to its role in payments, fulfillment, and returns as evidence of Walmart’s deep/direct involvement in the transactions.
Courts are also beginning to test these dynamics at the level of product design. In California, a bellwether trial is underway over whether social media platforms can be held liable for harms tied not to user content, but to features of their apps like autoplay, infinite scroll, and algorithmic recommendation systems. By framing those features as product design decisions rather than protected content, plaintiffs are attempting to move beyond Section 230 and into traditional product liability territory.
>> The takeaway: While these cases arise in different contexts, they point to the same shift: as commerce, infrastructure, and user experience are shaped by interconnected systems, liability is hard to confine to a single actor and instead depends on how systems are structured and who is responsible for them.
Geopolitical instability tied to the Iran conflict is beginning to affect retail through rising costs, supply chain disruption, and uneven demand. Ferrari, for instance, announced this week that it has temporarily suspended deliveries in the Middle East. Maserati also stopped deliveries, citing transportation issues and safety concerns.
Many consumer-facing sectors are particularly exposed in this context, given their reliance on global manufacturing networks and discretionary demand. As a result, operational pressures – from logistical challenges to rising costs, supply chain disruption, and uneven demand – can quickly be reframed as governance issues, shifting the focus from what happened to whether management anticipated and responded appropriately.
>> In practice: External shocks often become governance questions, particularly in sectors where global exposure quickly translates into performance gaps.
Across retail, legal risk is increasingly tied to how companies define and support what they claim. Trademarks must meet the threshold for distinctiveness, even in markets shaped by imitation. Founders’ names can become third-party assets in the wake of M&A. Origin claims must align with supply chain realities. Platforms are assessed based on how they function in practice, and data systems create exposure that extends beyond internal operations.