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Retail Law Advisor

Internet Sales Tax Update: Senate Introduces Marketplace and Internet Tax Fairness Act

Posted in Retail, Retail sales, Tax

Senators Enzi, Durbin, Alexander, Heitkamp, Collins and Pryor introduced the Marketplace and Internet Tax Fairness Act (MITFA) and the retail industry is listening!

Two of the largest retail industry trade groups in the U.S., the Retail Industry Leaders Association and National Retail Federation, urged Congress to pass a combined version of two bills. Essentially, the MIFTA legislation combines the previously introduced Marketplace Fairness Act (with several technical changes) and a 10-year extension of the Internet Tax Freedom Act, which provides a moratorium on state and local taxation on internet access.

The new bill would allow states to collect sales/use tax on internet retailers with gross sales over $1 million per year. This legislative vehicle follows on the 2013 Senate vote of 69-27 for Marketplace Fairness Act of 2013.

According to the ICSC shopping center trade association, the new legislation provides states the authority to enforce existing sales and use tax laws, if they choose to do so, by adopting one of the following options:

  • Streamlined Sales and Use Tax Agreement (SSUTA): Allows any state that is a member of SSUTA to require remote retailers to collect state and local sales and use taxes.
  • Alternative Minimum Simplification Requirements: States that are not SSUTA members may require remote retailers to collect state and local sales and use taxes if they adopt minimum simplification requirements as outlined in the bill.

Small Seller Exception: The legislation would prohibit states from requiring remote sellers with less than $1 million in annual nationwide remote sales to collect sales and use taxes.

We are tracking future developments and will report more in future posts, so please stay tuned!

The Future of Retail Checkout

Posted in Privacy, Retail

We’ve recently reported on a number of technological innovations which have changed the way consumers shop, including interactive “shoppable windows” which bridge the gap between online shopping and bricks-and-mortar retail, and new shopping technologies which integrate the shopping experience into the consumer’s lifestyle, allowing customers to scan a quick-response code directly from a television screen and purchase an item seen on a television show or commercial. The latest development in this realm is a new trend in shopping technology that seeks to transform the way consumers pay for items in traditional brick-and-mortar stores.

Many of the significant changes in retail check-out have focused on having the consumer do more of the work. Gone are the days of a general store clerk retrieving items requested by a customer, packaging them and accepting payment from the customer. For the better part of a century, the grocery-store model has been the norm – modern shoppers gather items themselves from customer-accessible shelves and take them to a centralized check-out clerk. Many grocery stores and drug stores have built upon that model by implementing self-check-out technology. Some grocery chains even use “intelligent” carts which can tally a customer’s total as items are added to the cart and even track movement and offer promotions as a customer approaches an item.

The next transformation in retail check-out is coming in the form of a network of sensors placed inside stores which will allow retailers to recognize customers via their smartphones or other devices when they walk through the door and have their preferred payment information at the ready. With inexpensive sensors affixed to the store’s merchandise, customers will have the ability to walk away with their selected merchandise and be billed automatically, completely sidestepping the traditional check-out process.

This type of technology will seem somewhat familiar to Apple shoppers, who for the past couple of years have been able to scan barcodes on items in Apple stores and pay for them using the “EasyPay” feature on the Apple Store app, avoiding the in-person check-out model altogether. Similarly, some restaurants, including Chili’s, Applebee’s and Buffalo Wild Wings, are already using tablets to transform the check-out experience. Diners can browse menus, place orders and check themselves out all using a table-mounted device, without ever interacting with a server.

While these futuristic check-out models have the potential to transform the check-out process and bring added convenience to the traditional retail experience, they also could cause privacy concerns. Retailers will need to gain the trust of consumers who may not be used to having their personal information exchanged across networks in real-time. Retail strategists have recommended that retailers avoid a “stalker” mentality and instead adopt a “butler” mentality. A stalker is perceived as surreptitiously trying to get as much information about you as possible, while a butler waits subtly in the wings looking for opportunities to make your life easier. If retailers are successful in adopting the “butler” mentality, the traditional check-out process could go the way of the old-fashioned general store clerk.

Take Cover: Protecting a Brand in the New Era of Generic Top-Level Domains

Posted in Intellectual Property, Retail, Technology

The rollout of new generic Top-Level Domains (gTLDs) is now well underway, and approximately 300 new gTLD strings have become available. A full, up to date list of gTLD strings can be found on ICANN’s web site. Some notable additions include: .shoes, .clothing, .organic, .global, .software, .market, .space, .autos, .luxe, .discount, .cheap, .exchange, .capital, .webcam, .trade, .bid, .bar, .club, .pics, .buzz, .menu and .cheap.

With the rapid expansion of available domains, trademark holders need to decide how to balance proactive and reactive strategies to protect their brands online. As we discussed in a previous blog post, proactive strategies could include registering trademarks with ICANN’s Trademark Clearinghouse (TMCH) and then registering second level domain names within the new gTLDs to keep those names from being used by cybersquatters and competitors. Alternatively, a reactive strategy could involve watching for gTLD abuse and then using the Uniform Rapid Suspension service or the courts to address the most harmful cases. Recently, however, five main players have emerged as the major owners and/or guardians of gTLDs, each offering a different package of rights protection mechanisms.


Perhaps the most influential of the gTLD giants, Donuts currently controls 139 gTLDs. Notably, Donuts has pioneered the recent trend of offering Domains Protected Marks List (DPML) protection to trademark owners who have registered their mark with the TMCH. In short, Donuts allows trademark owners to block the registration of domain names under any of Donuts’s gTLDs if those domain names comprise or contain an exact match of the trademark. The cost of a blocking request is significantly lower than defensively registering the same domain name under each gTLD. The initial blocking period ranges from 5 to 10 years with an option to renew annually in 1 to 10 year increments. Additionally, Donuts has adopted Architelos’s NameSentry anti-abuse technology to reduce malicious use of gTLDs. The DPML system does not apply retroactively, however, so retailers wishing to take advantage of the system’s protections would be wise to register sooner rather than later. For a full list of gTLDs controlled by Donuts, visit its site.

Rightside Registry

Rightside Registry is almost identical to Donuts in its protective mechanisms, employing a DPML for exact matches and strings containing an exact match of trademarks registered with ICANN’s TMCH and excluding some premium domain names. Like Donuts, Rightside also recently adopted NameSentry. A full list of Rightside’s gTLD portfolio can be found here.

Minds + Machines

Minds + Machines takes a similar approach to Rightside and Donuts by providing a blocking system called Minds + Machines Protected Marks List (MPML). Unlike its two competitors, however, MPML allows blocking for higher priced premium domain names. Additionally, MPML is cheaper than both Rightside’s and Donuts’s DPML. Like DPML, MPML applies to exact TMCH matches and variations. It is likely that Minds + Machines will be implementing NameSentry as well. For a full list of Minds + Machines’s gTLD portfolio, visit its site.

Famous Four Media

In contrast to registries employing DPML-type blocking systems and NameSentry, Famous Four Media (FFM) has focused on engaging industry stakeholders and facilitating reports of abuse. To this end, FFM has created Governance Councils for its individual gTLDs where participating industry stakeholders protect their interests by monitoring abuse and recommending best practices for that gTLD. Governance Councils will be responsible for collaborating with relevant international organizations in implementing abuse monitoring and prevention systems best suited for individual gTLDs. Additionally, FFM Governance Councils have implemented Abuse Prevention and Mitigation (APM) Seal reporting systems; APM web sites provide detailed guidance for reporting abuse. Although FFM registries do not enable individual retailers to preemptively protect themselves from cybersquatting like DPML-type blocking does, APM Seals will presumably facilitate active reporting of abusive practices. A complete listing of active governance councils can be found here, and FFM’s gTLD portfolio may be found here.


Uniregistry seems to offer the most limited protection of the five main gTLD players, relying primarily on abuse reporting through its web site. Domain owners would be required to independently police for gTLD abuse and proactively report that abuse to Uniregistry. For a complete listing of Uniregistry’s gTLDs, visit its site.

So long as registries take different approaches to gTLD protection and management, retailers and other brand owners should familiarize themselves with the different defensive measures offered by each registry in order to make the most cost-effective decisions to protect their brands online. To this end, a few caveats should be considered when planning brand management under the new gTLD system. First, the DPML systems offered by Donuts, Rightside Registry, and Minds+Machines will not protect against typosquatting. For example, if you registered the trademark “examples” with the TMCH, DPML systems would not protect against the registration of “xamples.” Second, DPML systems may not be enforceable by ICANN unless the registry has locked them in as a Public Interest Commitment (PIC) for that specific gTLD application. Donuts, for its part, has included such a PIC in each of its gTLD applications, but brand owners should still check for PICs with the registry in question before relying on a DPML system. Finally, brand owners should be aware of registry systems such as FFM and Uniregistry that may require them to take a more active role in policing their brand under certain gTLDs.

To summarize, brand owners should consider the following steps as they develop their marketing strategy: (1) register key trademarks with the TMCH (which generally requires registration with a trademark authority such as the U.S. Patent and Trademark Office) to take advantage of sunrise periods and DPML/MPML blocking systems; (2) monitor the list of new gTLDs as they become available and take advantage of sunrise or land rush periods to register domain names of particular value; (3) register key trademarks with DPML/MPML lists; and (4) monitor steps taken by brand-relevant gTLD governance councils.

Happy 4th of July

Posted in Holiday, Retail

During this week, we pause to proudly celebrate freedom and love for our country. We will resume providing timely information about issues that may be facing the retail industry and your business next week.

Thank you for subscribing to our retail blog. Happy Fourth of July!

Warm Wishes, The Retail Law Advisor editorial board

The Next Generation of Online Retail and Its Revolutionary Impact on the Fashion Industry

Posted in Retail, Retail sales, Technology

Have you ever had to have a pair of shoes and wondered where (and how quickly) you could get them? Instead of taking a surreptitious picture and searching endlessly in stores, try utilizing an online retail application such as Asap54. This app bridges the gap between what rivets your eyes and what you can buy by searching for the item online once you upload a picture to its database. Merchandisers who open online stores recognize that their success will only be enhanced by partnering with applications such as Asap54, and that such partnerships could exponentially increase traffic on their sites. Online shopping provides opportunities that simply are not available in physical stores. Therefore, traditional retailers, if they have not done so already, are likely to join the online retail revolution and embrace this new frontier.

Over the past decade or so, there has been a discernible shift in the retail market. Retailers have invested heavily in online sales given its ability to cut a wide swath and broaden the demographic range of consumers. Not only do online stores often have lower prices and incessant promotional sales (interestingly enough, impelling Google to create a separate tab for promotions), but they are also supremely convenient tools allowing consumers to purchase an entire wardrobe from the comfort of their couch. These benefits derive from lower overhead and an improved ability to determine demand for certain products. Online business models allow retailers to stock smaller amounts of more products, thus enhancing the retailer’s merchandise mix and ability to cater to a wide-range of styles.

The value of personalizing the shopping experience cannot be emphasized enough. With every click, online retailers gain invaluable information about a consumer’s penchant for fashion. Such information allows retailers to identify and recommend additional items that an individual shopper may want. In many respects, this is an ingenious method of facilitating repeat business as consumers will have yet another “must-have” item on their radar. In the past, shoppers relied upon the fashion know-how of in-store attendants to identify items that they would like; now, the omnichannel approach of utilizing online attendants, metadata and social applications increases the risk of blowing one’s credit-card limit without leaving home – much to the delight of retailers everywhere.

As any tried and true retail hawk would attest, finding chic retail merchandise, especially on the cheap, is one of those unrivalled and satisfying moments in a fashionista’s crusade to be in vogue. In the olden days (i.e. circa 2000) when brick and mortar retail shops were the only avenue –hardly on par with 5th Avenue abounding in swanky gear – where one could window-shop and purchase retail merchandise, one’s fashion choices were confined to what was in the stores at any given time. The dearth of variety among these stores’ merchandise mix and the potential for homogenous style among consumers caused fashionistas to whimper. Fortunately for fashionistas everywhere, online shopping has served as the white knight pacifying their woes and fears as they can keep abreast of the latest global trends without incurring the exorbitant costs of jetting to these global destinations. Every generation has advancements that seemingly change the way the game is played; it used to be clothing catalogues that walloped physical stores in terms of sales, then it was TV shopping, now the new frontier is mobile retail applications, which have opened consumers up to a whole new world of fashion choices, literally and figuratively, by providing consumers with innovative technology to find their newest prized possession.

Customer Loyalty Programs May Face Increased FTC Scrutiny

Posted in Compliance, Retail, Retail sales

Customer loyalty programs are discounts and coupons provided by a retailer to its shoppers as an incentive and reward for repeat purchases. Every industry seems to have its own version, whether it be airline frequent flyer miles, entertainment park privileges, or hotel points. Retail stores are among the fastest growing users of customer loyalty programs.

Although some loyalty programs provide a generic discount on all purchases, many retailers are moving toward using targeted coupons, special offers and discounts on a shopper by shopper basis. Targeting the desires, likes and needs of individual shoppers has become a successful sales technique. For many retailers, it also generates an additional revenue stream from data mining.

Every time a shopper makes a purchase, retailers match the purchase information to the shopper’s personal information: name, address, age, income, etc. Shoppers provide their information when they register for the loyalty program. Shoppers’ purchasing data is useful to the individual retailer, but the real revenue stream is in the world of Big Data. Data aggregators purchase data from customer loyalty programs and aggregate it with data from multiple sources. Data aggregators can match entire lifestyle profiles of a particular shopper from the breadth of the data that the aggregator purchases and then sell the information to the marketplace to enable retailers, banks, credit agencies, and other service providers to target their advertising and marketing to the shoppers most likely to buy their products or services. Big Data is Big Business.

From the retailer’s perspective, all shopping data is owned by the retailer and is sellable. Yet, the FTC has brought unfair competition actions against major web based companies, such as Google and Facebook, for not complying with, fully disclosing, or acquiring consent to their data usage policies from their online users. The FTC perceives online data collection as subject to a contract (in the form of the online Privacy Policy). To avoid FTC claims of unfair competition, the contract must disclose all information collected from web site users, how it’s stored and with whom it’s shared. Users must have an opportunity to view the Privacy Policy prior to full engagement with the web site and must be able to opt-out from collection and sharing of their information. Two points are worth noting: 1) mere use of the website is deemed acceptance of the Privacy Policy terms, but 2) FTC guidelines provide that changes to the Policy must be disclosed and users must opt-in to the changes in order for previously collected information to be used under the revised practices.

Unlike online Privacy Policy disclosures, most customer loyalty programs are implemented through a retailer’s brick and mortar location with a paper application or are opened instantly by a cashier without any terms and conditions provided to the shopper. If there is an online application, the terms tend to be minimal and mirror the “in-person” application process. Many online loyalty program terms do not include any option with respect to data collection and use.

As use and sale of customer loyalty program data increases, the terms and conditions under which customer loyalty data are collected, used and sold are coming under scrutiny by the FTC. In May 2014, the FTC released its final report, “Data Brokers, A Call for Transparency and Accountability.” The FTC has turned its attention to data collection, aggregation and sale activities of the Big Data aggregators. In the process, the FTC is looking into the sources, such as customer loyalty programs, that contribute to Big Data. The FTC notes that data aggregators often enter into contracts with the data source to acquire ownership of the data and to acquire the right to resell the data, but the aggregators do not confirm that the source, itself, has those rights.

With increasing FTC scrutiny of Big Data, customer loyalty program providers, as a data source for aggregators, may find their data collection and use practices reviewed by the FTC on the same or similar basis as online service providers. Even if the FTC targets the data aggregators rather than the data source, customer loyalty programs may find they cannot provide Big Data with the assurances the FTC desires—shoppers’ grant of data ownership, permission to use and right to sell.

Given the increasing focus on Big Data and off-line data collection and selling practices, now may be the prudent time for providers of customer loyalty programs to review their program agreements with their shoppers.

Tesla’s Retail Model Presents a Challenge for the Franchised Dealers Act

Posted in Retail, Retail sales

America’s hottest automotive company, Tesla Motors, is currently embroiled in a bitter dispute with car dealerships around the United States. Tesla’s retail marketing approach is unique from other automotive companies because it bypasses dealerships and sells directly to consumers, following a model established by Apple where a niche product is shown and sold directly to consumers. However, this sales model is illegal in many states which only allow licensed franchisees to sell new cars. States passed such laws to protect both dealers and consumers, by preventing the sort of vertical monopoly which, in the days of the Big Three Detroit automakers, might be perceived as limiting the ability of consumers to shop for the best price on a car.

Dealers are concerned that if Tesla is successfully able to sell cars directly to consumers, other automakers like Ford and Toyota might do the same. This is not the first time that traditional dealerships have tried to thwart new sales approaches. In 1999, dealers successfully won bans in several states to prevent Internet sales of automobiles by anyone other than an existing licensed dealer.

Tesla has been fighting battles in both the courts and the legislatures. In 2012, dealership associations in Massachusetts and New York sued Tesla under each state’s Franchised Dealer Act. In 2013, a Massachusetts court dismissed the lawsuit in that state and a New York court ruled in favor of Tesla.

The legislative fights have erupted in states without dealer protection laws or in states, like New York, where Tesla was able to successfully defeat litigation claiming that its sales model violated established dealer protection laws. For example, earlier this year, Tesla was able to defeat a bill in Missouri which would have made direct car sales by a manufacturer illegal. While the bill did not win support in the Missouri legislature this year, it will be revisited next year. Tesla had the support of the Federal Trade Commission, which released a statement that these types of laws “operate as a special protection for [independent motor vehicle dealers] – a protection that is likely harming both competition and consumers.”

It remains to be seen whether these legal challenges will put a halt to Tesla’s seemingly meteoric growth since its founding a little over a decade ago. Undoubtedly, the uncertainty of how certain state dealerships will react to Tesla setting up retail stores in their backyards may slow Tesla’s expansion into certain markets. Tesla’s innovations, both from a technological and sales standpoint, must certainly be recognized and praised; however, its experience is a reminder to companies that the legal and public policy aspects of any new product or venture must be considered.

ICSC RECon Global Retail Conference Recap

Posted in Real Estate, Retail

The annual ICSC RECon global retail conference went off without a hitch in Las Vegas this May. With 33,000 people in attendance, there was action in every corner. As promised in our April post, here is a recap of what we saw:

Where the Action Is

RECon has a reputation for being the fast lane for the retail industry. As in years past, there was a broad audience hailing from around the globe. Developers/landlords, retailers, franchisors/franchisees, lenders, private equity firms and other professionals came from all over the North America, Europe, South America and Asia to make things happen.

Enthusiastic Optimism

The conference atmosphere was exciting, with a palpable confidence bubbling under the surface. People were eager to talk and make the deals happen. There were a lot of topics circling the floor, but the main themes included new retail developments in secondary and tertiary markets, mixed-use and shopping mall renewal projects and brainstorming to opportunistically connect traditional brick and mortar retail to the Internet and virtual world for a better customer experience.

A Compressed Schedule

This year the ICSC embraced a new approach to the conference. Instead of the traditional Monday through Wednesday schedule, they test-drove a Sunday through Tuesday approach. The result? A jam-packed Monday that produced an exciting buzz on the show floor.


Overall, anyone who touches the business of retail knows that the RECon conference is the place to be if you want to facilitate introductions, enhance relationships and seal the deals that keep our economies in motion. We were thrilled to be a part of it and applaud the renewed confidence in the retail industry.

What The Height Act Amendment Means for DC Rooftop Development

Posted in Development, Landlords, Permitting, Real Estate, Retail, Tenant, Zoning

Last week, President Obama signed an amendment into federal law allowing human occupancy in rooftop penthouses on top of DC buildings. This is an exciting update for DC real estate owners and developers because it presents a budding opportunity to build penthouses for more value and usability beyond what is currently permitted.

Currently, DC law permits approvals as an “exception” to DC building height limits in circumstances where penthouses may exceed height limits for “mechanical” purposes only. The federal change reflects broader policy efforts to respond to real-time urban planning needs in Washington, but there are some important elements at play that may determine whether developers will build penthouses for people any time soon. It’s important to note that this new federal law allows for an additional use of DC penthouses; it is not a mandate that DC law be consistent with this federal change. Furthermore, references to “the Height Act” may connote two distinct bodies of law. On the federal side, the Height Act refers to the 1910 Height of Buildings Act, which is the act amended last week at the federal level. On the DC side, the Height Act means additional, specific zoning laws enacted by DC. DC zoning law is not superseded by the federal amendment. The language of the federal Height Act allows for the granting of greater specificity in regulating DC building heights and use under the supervision of DC mayoral and zoning authorities.

Note that DC’s Zoning Commission comprises two federally-appointed commissioners and three DC-resident commissioners appointed by the mayor. The original momentum to this recent federal amendment came from a collaborative study involving both DC’s Office of Planning and the federal National Capital Planning Commission to make informed recommendations to Congress. Despite some divergence in OP and NCPC recommendations, the recent amendment illustrates District-Federal policy alignment for Washington, DC’s physical space. There are also some other differences between federal and DC law on this subject. Current DC zoning regulations limit human occupancy on rooftops and restrict commercial, mechanical penthouses to a vertical height maximum of 18.5 feet with certain setback requirements depending on the building height, street width, and location. The recently amended federal Height Act: it allows human occupancy in a “penthouse” generally, with a vertical height maximum of 20 feet, not to exceed one story. DC regulations could narrow the general federal language if DC responds favorably to permit such human occupancy, and might well involve further specificity on setback and location requirements.

The next mayor will be influential in how DC law responds to the federal amendment. However, until this happens, valuable penthouse development opportunities are yet to be realized.

Clowning Around and Reheating the Breakfast Wars

Posted in Intellectual Property, Restaurants, Retail

Taco Bell has joined the breakfast wars through the launch of its first breakfast menu. Taco Bell’s initial maneuver in this ongoing battle for breakfast customers takes direct aim at McDonald’s iconic breakfast menu. Taco Bell’s television commercials feature individuals named “Ronald McDonald” attesting to their “love” for “…Taco Bell’s new breakfast.” These commercials include the disclaimer: “These Ronald McDonalds are not affiliated with McDonald’s Corporation and were individually selected as paid endorsers of Taco Bell Breakfast, but man, they sure did love it.” The three versions of this television commercial are available here, here, and here.

Many viewers respond with a common inquiry: “Can Taco Bell do that?” Taco Bell’s reference to McDonald’s trademark-protected clown mascot and slogan (I’m Lovin’ It®)—as well as the thematic structure of these commercials—raise interesting questions under trademark and copyright laws.

Comparative Advertising

Trademark laws permit companies to use their competitors’ trademarks in advertising under limited exceptions. For example, the use of a competitor’s trademark may be necessary to differentiate products or services. This is known as comparative advertising, which may be protected from trademark infringement and dilution claims under the rubric of “nominative fair use.”

Nominative fair use permits the unauthorized use of a competitor’s trademark in advertising, provided that such advertising does not contain misrepresentations, does not imply any endorsement or sponsorship by the trademark owner, there is no easier way to refer to the owner or its products, and only so much of the trademark is used as is needed to identify the trademark owner. These considerations with comparative advertising and nominative fair use are relevant to false advertising claims, which we addressed in a recent post.

McDonald’s responded to Taco Bell’s television commercials with a social media campaign, including a Facebook post with a picture of the Ronald McDonald® clown petting a Chihuahua, Taco Bell’s former mascot, and the caption: “Imitation is the sincerest form of flattery.” McDonald’s clever retort in place of legal action prevents a formal exploration of whether Taco Bell’s commercials fall within the permissible scope of nominative fair use. Nonetheless, Taco Bell’s commercials and the McDonald’s response serve as valuable reminders to all retailers that advertising campaigns must be vetted thoroughly so that the appropriate business units can weigh the potential risks and benefits.


Taco Bell’s television commercials also raise interesting copyright questions. Other companies have used the thematic structure of average-citizens-with-famous-names in commercials. In 2012, the sports network ESPN featured the pitfalls of an individual with the name “Michael Jordan” in a SportsCenter campaign (available here). Notably, in 2002, the fast-food chain Jack In The Box featured a commercial in which the “Jack” mascot delivered a burger to an individual named “Ronald MacDonald.” This commercial ends with the mascot stating: “Now my burgers are so good, even Ronald MacDonald likes them.” The similarities among these commercials can be analyzed under copyright laws.

Copyright protects original works of authorship, including television commercials and other forms of advertising media that feature literary, artistic, or musical content. Copyright does not protect ideas or concepts revealed in written or artistic works. Rather, it protects the way in which such things are expressed, i.e., the end product. Courts have explained that the essence of copyright infringement lies not in copying a general theme, but copying the particular expression of a general theme through similarities of treatment, details, scenes, events and characterization. The demarcation between ideas themselves and the tangible expression of those ideas is amorphous and requires a fact-intensive analysis.

Here, the similarities between Taco Bell’s commercials and its predecessors’ commercials raise interesting copyright questions. If Taco Bell’s commercials were challenged, a court would have to compare the style, structure, and other expressive elements of these television commercials to determine whether there are similar general themes or if actionable copyright infringement may exist. At the very least, this should remind retailers that they must be attuned to copyright and other intellectual property issues throughout the creative process of developing marketing and advertising strategies.