The 2025 Art & Fashion Law Conference is two weeks away!
Sponsored by the Federal Bar Association’s Intellectual Property Law Section and their Southern District of New York Chapter, this year’s conference returns to the offices of Dunnington, Bartholow & Miller LLP in the heart of New York City.
In two weeks, we’ll welcome experts from The Estée Lauder Companies Inc., Louis Vuitton, Ross Stores, Inc., SUPIMA, Model Alliance, Conair LLC, the World Jewish Restitution Organization, and many more. Come ready to network with and learn from top leaders in the Art & Fashion Law industries.
The full program can be found here.
All attendees registered for one or both days are invited to join us for a cocktail hour from 4:30-5:30 p.m. on Wednesday, February 12th. 5 CLE credits will be offered on each day.
Click here to register by Friday, January 31st for a 5% discount!
We are pleased to share that Partner Olivera Medenica will be featured in an upcoming issue of Forbes Magazine as part of their “Leaders In Law” series.
On February 11th, Dunnington, Bartholow & Miller LLP partner Raymond Dowd will present a free online CLE in partnership with the Westchester County Bar Association. One credit in Professional Practice is available. The session is co-sponsored by Stagg Wabnik Law Group LLP, Justice Brandeis Law Society, and the Westchester Women’s Bar Association.
For more information and to register, click here.
On February 28th, Dunnington, Bartholow & Miller LLP Partner Raymond Dowd will take part in Fordham University School of Law‘s symposium, “Remedies for Looted Art and Cultural Property-Civil, Criminal, or Consensual?” presented by the Fordham Law Review. He will be joined by Christopher McKeogh, Anna B Rubin, and Antonia V. B. for the panel “Holocaust Era Looted Art and Cultural Property: How Do We Restitute History?”, moderated by Judge Hilary Gingold.
For more information and to register, click here.
A trade dress refers to the total commercial image of a product or its packaging, which may include elements such as size, shape, color, texture, or even packaging style. The distinctiveness of these elements creates a unique visual identity that makes the product easily recognizable in the marketplace. Think of it as the overall “look and feel” of a product that allows consumers to immediately associate the product with a particular company without ever needing to see a logo or brand name.
The concept of trade dress is encompassed within the definition of a trademark and is therefore protectable under trademark law. To obtain trade dress protection, your product design or packaging must meet two key requirements: it must be distinctive, and it cannot be functional.
The shape of a glass Coca-Cola bottle for example, is protected by trade dress. The specific blue color that Tiffany & Co’s uses for their gift boxes is also protected by trade dress. As soon as you see the iconic packaging of that little blue box, you think beauty, luxury, and elegance – you think Tiffany’s – even before seeing what is inside. Similarly, as soon as you see the shape of that classic glass Coca-Cola bottle, you think of that classic cola taste (and perhaps childhood memories of a refreshing drink on a hot summer day). That’s trade dress, and it is driven not only by branding but consumer recognition.
For a trade dress to be considered distinctive, it must allow the customer to easily identify the product’s source. When a trade dress is so unique that this identification is clear and immediate, it may be considered inherently distinctive. Otherwise, you must prove that your trade dress has acquired secondary meaning. Secondary meaning is when a trade dress, through extensive commercial use or advertising, becomes associated with a single brand in the minds of the public. For example, the shape of a Ketchup bottle, a Birkin bag, or an iPhone, or even the distinctive configuration of a restaurant. These shapes, colors and designs have all achieved secondary meaning through extensive commercial use and advertising.
The second requirement is that the product’s design cannot be purely functional. Design elements are considered functional if they serve a practical purpose or are essential to the product’s use or effectiveness. For example, a shoe sole pattern that improves traction or a bottle shape that makes the bottle easier to hold. Neither of these elements would be protected under trade dress. Trade dress protection covers the aesthetic elements that make up a product’s signature style and unique branding identity, rather than the product’s functionality.
While trademarks are important for safeguarding your brand’s name and logo, trade dress is essential for protecting the overall look and feel of your products. Both serve as powerful tools in protecting your brand’s identity, reputation and market value.
On February 12 & 13, the Federal Bar Association Intellectual Property Law Section’s 2025 Art & Fashion Law Conference returns to Dunnington Bartholow & Miller LLP. Featuring ten CLE sessions, two keynote speakers and networking opportunities, this two-day conference held in the heart of New York City is a must for those interested in the intersection of art, fashion, and the law. Registration is now open!
A 10% early bird discount will be automatically applied when you register by January 11th.
Save the Date!
Dunnington’s annual Art & Fashion Law Conference will be held on February 12 & 13, 2025.
Featuring 10 panels across two days, the conference will span a breadth of the latest issues in the art and fashion law sectors, provide networking opportunities, and offer CLE credits for new and experienced attorneys. Registration will open next week.
On December 3rd, Dunnington, Bartholow & Miller LLP partner Jay Safer will present an in-depth look at the ethical and practical aspects of conducting litigation across state lines in a CLE webinar hosted by the Beverly Hills Bar Association Litigation Section. Mr. Safer will be joined by speaker David D. Samani and moderator Sidney Kanazawa. One California CLE credit is available (eligible for credit in additional jurisdictions; see website for details).
For more information and to register, click here:
https://myemail.constantcontact.com/Advanced-Trial-Tactics–Practical-Considerations-for–Cross-Jurisdictional-Litigation.html?soid=1102591689817&aid=ljaXY2pZGJw
Whenever you sell real property in the United States, the buyer will require you to sign a FIRPTA affidavit swearing that you are or are not a foreign person. FIRPTA refers to the Foreign Investment in Real Property Tax Act of 1980. Here is a link to a detailed explanation of FIRPTA from the Internal Revenue Service.
Why does a purchaser require the information as to whether or not you are a foreign person?
Because the IRS will charge the purchaser any tax that you, the seller, might owe if it goes unpaid.
But what does that have to do with being a foreign person? Well, the IRS doesn’t trust a foreign seller to pay any tax owed if the foreign seller takes the proceeds overseas after closing the sale.
This IRS concern gives rise to the dreaded “FIRPTA tax withholding” requirement. FIRPTA requires both parties to the sale, i.e., the purchaser as well as the seller, to account at the time of closing for any tax owed on the sales proceeds by the seller. Either the seller convinces the IRS ahead of the closing to grant an exemption from any tax or – more likely – the parties put 15% of the sales price into escrow until the seller gets the exemption or files their tax return.
And because the IRS will take its 15% from the purchaser if it isn’t put aside at the time of closing, the purchaser will do whatever it takes not to lose that money. Which means that the purchaser has two options. One: the purchaser gets an affidavit from the seller that the seller is not a foreign person subject to FIRPTA; Or two: the purchaser gets the seller to agree to put 15% of the sales proceeds aside at the closing, usually by giving it to the purchaser’s title insurance company to hold in escrow, until the seller takes care of the IRS by getting an exemption or filing a tax return and paying whatever tax is due.
So, this is why you need a FIRPTA affidavit when you sell real property in the US. Aren’t you glad you asked?
Andrew Weltchek is a member of Dunnington’s construction, real estate and litigation, arbitration and mediation practice groups. He counsels owners of commercial properties in New York City on closing sales and purchases, dispute resolution and settlements, both in and out of court. In 1992 he transitioned from the Real Estate Finance Bureau of the New York State Attorney General’s office into private practice. Along with commercial real estate, Mr. Weltchek has experience defending Americans with Disabilities Act claims and knowledge of Condominium and Cooperatives Law in New York City. Read More