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Retail Law Advisor

A Changed World: The Supreme Court Permits State and Local Taxation of Online Sales by Retailers with No State Presence

Posted in Retail, Tax

A Changed View of Online Sales Tax for Out-of-State Retailers

 

With the growing and evolving retail world, which we have discussed before, one thing had remained constant: retailers did not have to collect sales tax for online sales to states in which they had no physical presence. Thanks to the Supreme Court, that principle had remained a stalwart for both online retailers and brick-and-mortar retailers who wish to expand their markets beyond their physical stores. However, the Supreme Court has overturned that precedent and is now allowing states and localities to subject all sales, including online sales, to consumers within a state to sales taxes. The Court’s decision has the potential to significantly impact the way retailers interact and sell to online customers and could have ripple effects for brick-and-mortar and online sellers throughout the country.

The Supreme Court case, South Dakota v. Wayfair, Inc., was argued in April, 2018 and the Court issued its decision, siding with South Dakota, on June 21, 2018. At issue in this case is a South Dakota statute that requires any retailer who sells more than $100,000 worth of goods or conducts more than 200 transactions within the state to collect the state sales tax for those goods. South Dakota sued four online retailers to force them to comply with the state law. The retailers won in state courts due to a 1992 Supreme Court precedent, Quill Corp. v. North Dakota, in which the Supreme Court declared that states and localities could not subject catalog retailers to state and local sales taxes if the retailer does not have a physical presence within the state. Now the Supreme Court has ruled, 5-4, for South Dakota, overturning Quill.

In Quill, the Supreme Court established that, absent a physical presence, states and localities could not subject retailers to sales taxes. Quill dealt with catalog sales right on the cusp of the online retail boom. Since 1992, sales from out-of-state retailers have skyrocketed, largely due to online sales. However, absent a physical in-state presence, those sales have not been subject to state or local sales taxes. At least some members of the Supreme Court have questioned the wisdom of Quill in recent years, like Justice Kennedy, who wrote that the court should revisit the Quill decision in a 2015 concurring opinion. The Court’s decision here, as foreshadowed by the oral arguments in April, divided the justices over significant questions on the merits of overturning Quill and the impact on retailers trying to comply with over 12,000 different sales tax laws.

Justice Kennedy, writing for the majority, which included Justices Thomas, Ginsburg, Alito, and Gorsuch, upheld the South Dakota statute. The opinion noted that the physical presence requirement was wrong, especially today given the extensive contacts online retailers have with consumers without ever having physical interaction. The Court further found that the physical presence requirement created an inequality among retailers depending on their business model. The majority recognized that overturning prior precedent is a high burden, but that here, it was clear the Court had erred in its previous decision.

Chief Justice Roberts wrote a dissent, joined by Justices Breyer, Sotomayor, and Kagan. Interestingly, the dissent did not disagree with the general conclusion of the majority – that Quill was wrongly decided. However, the dissent reasoned that because the principle of stare decisis is so strong, it was not correct for the Court to overturn its prior decision given the high burden to do so. Instead, the dissent would have relied on Congress to institute a law allowing state sales taxes of online sales.

The Court’s decision will have a profound impact on retailers, who will now be required to track all online sales in states that impose such sales taxes. Some large retailers, like Amazon, have opted to already take this approach. We expect, as the Court discussed at oral arguments, an increase in the software and tools available to retailers to track these kinds of sales in order to comply with state and local tax laws. We will continue to monitor the ripple effects of the Court’s decision and the resources available to ensure compliance.

A World of Trademarks at INTA 2018 Annual Meeting in Seattle

Posted in Intellectual Property, Retail

During the week of May 20, 2018, members of the Goulston & Storrs Intellectual Property Group joined over 10,500 attendees from around the world for the 140th Annual Meeting of the International Trademark Association (INTA). Held in Seattle, Washington, the INTA 2018 Annual Meeting attracted an incredibly diverse group of brand owners, in-house counsel, outside counsel, government officials, academics and other intellectual property professionals from over 150 countries.

The authors of this blog post took advantage of the opportunity to speak with a wide array of trademark professionals about some of the more pressing issues facing brand owners and the retail industry today. The issues that garnered the most attention were the impact on brand ownership and protection as a result of the prospective British departure from the European Union (commonly known as Brexit), and compliance with the European Union’s new General Data Protection Regulation (GDPR), which went into effect on May 25, 2018. Additional hot topics for discussion included strategies for combatting cybersquatting, counterfeiting, best practices for trademark licensing, and strategies for protecting product designs through trademark / trade dress, patent and copyright enforcement.

While fish tossing at iconic Pike Place Market and sipping espresso at the original Starbucks® store were wonderful excursions into the colorful world of retail brands in action, one highlight of the trip to Seattle was attending the annual meeting of the Intellectual Property Practice Group of Meritas®, a worldwide network of law firms in which Goulston & Storrs serves as the Boston member. This meeting enabled us to see old friends, make new connections, and engage in lively discussions about best practices and developments in trademark law around the world.

Next year’s INTA 2019 Annual Meeting will take place in Boston, just blocks away from our Boston offices. We look forward to welcoming back our friends and colleagues from around the world to Boston next year for the INTA 2019 Annual Meeting.

ICSC RECON 2018 – Stepping Into The Future

Posted in Real Estate, Retail

The Las Vegas Convention Center hosted ICSC RECon 2018 last week from May 20-23. Upon their entry into the Convention Center’s Central Hall, this year’s RECon attendees were greeted by the ICSC Innovation Exchange. This interactive exhibit showcased a broad range of new technologies, including autonomous security systems, digital storefronts and 3D body scanning systems, which help take pin-point measurements for customer sizing. The exhibit was developed by J. Skyler Fernandes, managing director of investments at Cleveland Avenue, who curated a similar exhibit at the 2017 New York Deal Making. Representatives from the various exhibitors were available to present and explain these innovative products, which are rapidly changing the retail landscape and customer shopping experience.

The future of retail was also on display in other aspects of this year’s convention. The RECon SPREE exhibit, for example, welcomed several formerly pure-play e-tailers that are now opening brick-and-mortar stores. The show’s formal presentations were also focused on this theme, including a panel discussion led by Mr. Fernandes on “Investing in Retail and Real Estate Technology.” Many of the exhibition booths similarly tried to keep things fresh with new technologies and more interactive experiences. For example, OliverMcMillan’s exhibit included a virtual reality tour of their Fifth + Broadway mixed-use project in Nashville, Tennessee.

The Las Vegas Convention Center itself will be stepping into the future with a $1.4 billion revamp. The extensive work is not set to be completed until 2022 and will include a 600,000 square foot addition, as well as renovation of the Convention Center’s existing four halls. ICSC is currently signed up to hold RECon in Las Vegas through 2022 and Convention officials indicate that the show will continue uninterrupted during this renovation period. RECon attendees are eager to see what the future has in store.

As far as changes in the Conference itself, attendees seemed to enjoy the programming offered, including the keynote presentations each day of the Conference. Given the focus of the Conference from Sunday to Tuesday, several attendees suggested that perhaps the Conference should end next year on Tuesday, a day earlier than usual. It appeared that most meetings scheduled for Wednesday were rescheduled to earlier in the Show. Overall, the consensus was that the Conference was productive and the future of retail, while changing, continues to look bright.

ICSC RECon In Full Swing

Posted in Retail

ICSC is in full swing at the Las Vegas Convention Center this week. This is the world’s largest gathering of retail real estate professionals. With 37,000 industry professionals and 1200 exhibitors, it promises to be an amazing week. Last year, the mood at the convention was largely positive despite the sensitivity to challenges facing the retail industry. We anticipate that technology, social media and e-commerce will continue to be on the top of the conversation list. The ICSC Innovative Exchange will surely give the audience some interesting hands-on access to what the Washington Post is calling “The future of retail.”  Stay tuned and we will report back next week on trends and all we learn this week.

The New Dawn of Retail: Apocalypse or Evolution?

Posted in Bankruptcy, Retail

Major retailers that once reigned supreme with brick and mortar stores now face unparalleled challenges. Historically, major retailers dominated the retail industry by opening stores in the most desirable locations and offering fetching merchandise at a great value. But, numerous trends – including a dramatic shift in shopping habits, the rise of e-commerce, the overabundance of malls and the revival of the restaurant experience – have triggered a shift in the U.S. retail landscape and led to the demise of brick-and-mortar stores. A recent spate of store closures affecting niche-market retailers, such as Toys’R’Us, RadioShack and Payless, illustrates the impact of this new reality for the retail industry. As more and more U.S. retailers close up shop and file for bankruptcy, it is becoming clear that the industry’s decline isn’t simply a phase or a temporary blip on the radar, but rather the new normal.

The inauspicious fate of major retailers appears to be at odds with the broader economic narrative in the U.S. – one where the economy is thriving and consumer confidence is at an all-time high. These favorable economic signals would typically be a harbinger for a thunderous retail boom, yet the reality is one of gloom and doom. The rapidly changing retail landscape is experiencing unprecedented upheaval as brick and mortar stores battle to keep pace with shoppers, who have taken their business online, and is bracing for a tsunami of store closings in 2018 as major retailers succumb to increased debt. The number of store closures is expected to rise by at least 33% to more than 12,000 in 2018 according to a report by Cushman & Wakefield. When combined with the record number of store closings in 2017, an increased rate of closures in 2018 would push a number of under-performing malls to the brink of extinction. Indubitably, the most significant trend affecting brick-and-mortar stores is the meteoric rise of Amazon and other online retail companies, who have wrested away market share. But the fall of the retail industry is also largely due to the Great Recession, which placed a premium on experiences – especially those that translated into an Instagram post – and unleashed a restaurant renaissance.

In today’s retail environment, retailers must take into consideration the e-commerce effect and its impact on future store performance. Given the rise of mobile shopping and the online shopping experience, retailers are dealing with more store closures than they ever could have predicted. While it’s unlikely that brick-and-mortar stores will ever be displaced entirely by e-commerce, developing harmony between the two appears to be the most viable strategy going forward. Retailers today have an amazing opportunity to pioneer a new landscape in the retail industry, one which is date driven, highly personal and deeply entrenched in technology. And, despite the rash of store closures, brighter days and a new dawn lie ahead for the retail industry.

No More Lifetime Guarantees – The Importance of a Balanced Return Policy

Posted in Retail, Retail Sales

In February 2018, L.L. Bean made the tough decision to change its lifetime return policy, which had been in existence for over a century. Following the policy change, the company received backlash from its customers, with many of them voicing their frustrations on twitter. One user tweeted “L.L. is 100% rolling in his grave #NoRespect.” Another complained that L.L. Bean could no longer justify its price point, tweeting “Seriously? The only reason to pay the mark up at L.L. Bean was you knew that product was guaranteed for life.” One disappointed customer even filed a class action suit against the company for not honoring its lifetime warranty.

L.L. Bean’s new return policy states: “[i]f you are not 100% satisfied with one of our products, you may return it within one year of purchase for a refund.” The company’s previous policy was one of the most generous in the retail industry, with the company allowing its customers to return items even if they had bought them over a decade ago. Shawn O. Gorman, L.L. Bean’s executive chairman and great-grandson of Leon Leonwood Bean, the Company’s founder, explained that the reason for the change was that “[a] small, but growing number of customers [had] been interpreting [L.L. Bean’s] guaranty well beyond its original intent.”

The recent backlash against L.L. Bean underscores the importance of implementing a clear return policy that balances customer satisfaction and retailer economics while complying with applicable law. If a retailer’s return policy is too liberal, the retailer runs the risk of customers abusing the policy. If a retailer’s policy is too stringent, its customers may be reluctant to buy merchandise.  A return policy builds trust between a retailer and its customers and is even more important in the e-commerce world, in which customers cannot inspect merchandise before buying it. “A survey by e-BuyersGuide.com found that 86 percent of online shoppers rated return policies of significant importance in choosing an online merchant.” Many e-commerce retailers have tried to attract shoppers with return policies that provide for extremely forgiving terms.  However, as L.L. Bean learned the hard way, these companies have found that accepting returns comes at a high cost.  According to a report from Appriss Retail, ten percent of sales ($351 billion) made by the retail industry last year, were lost to returns.

In tailoring their return policies, retailers should continue aiming to balance customer satisfaction with the cost and hassle of managing merchandise returns.  In 2016, Harvard Business Review published an article about how companies may be able to achieve this balance, highlighting six specific suggestions: (1) be selectively lenient based on the cause of the return; (2) be selectively lenient based on time; (3) be selectively lenient to enhance the perception of quality for certain products; (4) be selectively lenient for more important customers; (5) limit gift returns; and (6) start the return policy later (e.g. after a trial period).

When adopting and updating their return policies, retailers should also be sure to comply with federal, state, and municipal laws and regulations. For example, the Federal Trade Commission enforces a “Cooling-Off” rule that gives consumers a three day right to cancel a sale made at their home, workplace or dormitory, or at a seller’s temporary location, like a hotel or motel room, convention center, fairground or restaurant. And at the state and municipal level, a retailer may have to meet certain disclosure requirements with regard to its policies concerning refunds, returns, or exchanges.  Otherwise, default rules may require the retailer to accept returns for a minimum period of time.

As e-commerce is becoming the preferred way to buy and sell many products, and as L.L. Bean’s experience shows, it is increasingly important for retailers to implement well-crafted and balanced return policies.

Does Trademark Protection Extend to On-Line Advertising- Apparently It All Depends

Posted in E-commerce, Retail

It seems that nearly every day another retailer announces the large-scale closure of brick-and-mortar storefronts, with such household brands as Toys “R” Us and J. Crew, just to name two, planning to shutter stores in 2018. The significant challenges faced by traditional retailers are often attributed to the rise of online shopping, while at the same time some retailers are bucking this trend and expanding their physical footprints. Further, in light of the bells ringing the demise of brick and mortar, it remains the case that e-commerce even today accounts for less than 10% of total sales.

While the debate continues regarding the threat that e-commerce poses to traditional retail, one thing is for certain — much of the marketing that fuels all retail purchases has migrated online. The rise of digital marketing, though relatively recent, has been swift and extraordinary. It was only a few years ago that online advertising revenue surpassed ad revenues for broadcast TV, and just last year that it overtook all TV ad revenue combined, including both broadcast and cable.

The astonishing ascent of digital advertising has been largely spearheaded by, and continues to be dominated by, Google, which collected an estimated $73 billion in ad revenue in 2017 alone. The lion’s share of this revenue comes from Google’s AdWords platform, which allows businesses to bid on keyword search terms. Whenever the purchased term is searched, the business’s ad is displayed in the “sponsored” banner at the top of the search results. Though Google continues to maintain its dominant position with AdWords, some also see a threat looming as Amazon’s advertising business, which operates much like AdWords, begins to gain momentum. In any event, while not the only medium for marketing online, there is no question that search-based advertising continues to be a central focus of marketing efforts, especially as more and more digital ad revenue is attributed to mobile advertising, which is driven largely by mobile search.

It is within this context that a federal district court in Manhattan recently handed down a telling decision addressing an issue at the fore of digital advertising — whether trademark law prohibits an organization from purchasing a competitor’s trademark as a keyword. The case, which was successfully litigated by Goulston & Storrs’ own Martin Edeland and Adam Safer, pitted two of the largest Alzheimer’s charities in the country — the Alzheimer’s Disease and Related Disorders Association (“Association”) and the Alzheimer’s Foundation of America (“Foundation”) — against each other in a battle for donations.

In a nutshell, as part of its online marketing campaign, the Foundation had purchased trademarks owned by the Association as keywords in Google’s AdWords. The Association sued, claiming that the purchase of its trademarks, combined with the Foundation’s use of an abbreviated two word name, created confusion for consumers constituting infringement under the Lanham Act, the U.S.’s primary trademark statute. Ultimately, the court disagreed and found that, even though the Foundation’s and the Association’s marks were similar, the Foundation’s purchase of the Association’s trademarks as keywords was not likely to create confusion for consumers and therefore did not violate the Lanham Act.

While the case involved non-profits and was not the first to address the practice of purchasing competitor keywords, the court’s decision has immediate implications for commercial advertisers who are either considering buying competitor keywords or who are looking to protect their own trademarks from others who might use this strategy. In reaching its decision, the court applied the traditional multi-factor test typically applied in infringement claims. Key to the court’s decision was its finding that the Association’s trademark was a relatively weak descriptive mark. Additionally, the court found little, if any, evidence of actual confusion among consumers between the Association and the Foundation. On this point, the court rejected surveys conducted by the Association that allegedly demonstrated confusion, finding that these studies were flawed, specifically, for their lack of a sufficient control variable.

In focusing largely, though not solely, on these two factors — strength of trademark and whether surveys demonstrate actual consumer confusion — the court provided a valuable roadmap for retailer either evaluating their own trademarks or considering purchasing competitor marks. Certainly among the largest considerations for a retailer would be evaluating the relative strength of a trademark and evaluating whether purchasing competitor keywords creates confusion for an ad audience by conducting due diligence in the form of consumer surveys. Given the complexity of this area of the law, it is undoubtedly wise to consult sophisticated counsel to assist with charting your path.

Preparing for a Retail Storm

Posted in Liability, Retail, Retail Sales, Risk Management, Technology

In the past few years, we have seen increasing temperatures, rising sea levels and extreme weather across the globe. According to NASA, 2016 was the hottest year on record and 2017 was the second warmest year on record. In 2017 alone, the world witnessed massive heat waves in the Arctic and Australia, dangerous droughts in Somalia and horrific hurricanes in North America and the Caribbean, just to name a few. As erratic weather promises to continue, businesses, including retailers, are taking note. In fact, the Center for Climate and Energy Solutions found that 90% of the multi-national, blue chip companies on the Standard and Poor’s Global 100 Index recognize climate change as a major risk to business.

Demand for products has always been driven by fairly predictable seasonal weather, both in brick-and-mortar stores and online. It seems obvious that colder weather boosts the sales of things like boots and snow removal products while warmer weather increases sales for sun care products and outdoor lighting. Planning tends to become more difficult when weather becomes less predictable. For example, when people are stuck at home due to winter storms, e-commerce sales do not increase like one may think; instead, when people are home from work, they are busy dealing with things like power outages and household chores, and are not online shopping like they may have been at their desks in the office. What becomes even less obvious is how to plan for extreme weather conditions.

Extreme weather, like storms or wildfires, has the potential to disrupt supply and distribution chains, cause inadequate staffing, render products too scarce or abundant and distort prices. Loss in revenue due to store closures or decreased foot traffic is business that is rarely made up. In fact, atypical weather disrupts the operational and financial performance of 70% of businesses throughout the world and weather variability is estimated to cost the United States about $630 billion each year. Small businesses and new businesses are especially disadvantaged by extreme weather.

Retailers historically plan for the year ahead based on the seasons. As businesses grapple with extreme weather, though, companies are understanding the value in weather prediction services. After all, the prior year’s weather is only an adequate indicator of the next year’s weather about 15% of the time. By utilizing weather data and analytics, retailers hope to better understand how weather affects customer traffic, sales, staffing, production and pricing.

Lucky for retailers, weather forecasting programs have also become more accurate, thanks in large part to artificial intelligence (AI) which enables researches to analyze massive amounts of weather-related data faster and more efficiently than ever before. IBM’s Deep Thunder, for example, utilizes weather, location and traffic data to predict the weather and therefore assist businesses in making smarter and more informed decisions ahead of time. Interestingly, IBM bought The Weather Company in 2015 to access its data in conjunction with Watson, IBM’s AI platform.

Similarly, there are weather-focused consulting firms that encourage companies to quantify the impact of weather on their businesses by measuring the impact across time and location. Weather-based sales distortions can then be removed from the company’s sales history to create a baseline for planning purposes. In a report by the National Retail Federation (NRF) in partnership with Planalytics, NRF found that businesses that remove the historical impacts of weather from their sales history can drive a 20-80 basis point annual improvement in profitability in inventory management alone.

As extreme weather continues to disrupt the globe, businesses will undoubtedly need to consider ways to develop more weather forecasting technologies and weather-focused planning services.

Credit Card Evolution: Goodbye John Hancock

Posted in Banking, Restaurants, Retail, Retail Sales, Technology

For years, the signature requirement for completing a credit card transaction has felt something like an obsolete means of confirming a user’s identity. Effective this month, however, four of the country’s largest credit card providers: American Express, Discover, Mastercard and Visa, will no longer require a signature to complete a purchase via credit card. The change is considered optional, leaving much discretion in the hands of retailers as to whether or not to require a signature. As a result, consumers may see inconsistent approaches in the marketplace.

Credit card companies, which generally cover the cost of fraudulent credit card transactions, were prompted to remove the signature requirement primarily by an enhancement of security that came with the chip-and-PIN card technology. In 2014, consumers saw the transition retailers made from accepting magnetic credit card strips to requiring updated chip-and-PIN technology for all credit card transactions, primarily as a result of a shift in fraud liability to merchants who did not adopt the new technology. Most consumers initially experienced this in the awkward form of swiping, then inserting the chip, then removing it too soon, all while holding up the line at the local coffee shop. Yet, the intent behind the change was a bit more sophisticated: such “chip cards” produce an encrypted mathematical code that is unique to each transaction, which makes counterfeiting stolen data much more difficult for would-be fraudsters.  While both retailers and consumers experienced some growing pains during the transition, chip cards now seem to be the near universal method of credit payment.

Dropping the signature requirement can be expected to have unintended consequences on particular retailers, namely in the hospitality and service industries. Typically, when paying at a restaurant, for example, the opportunity to add a tip to the check occurs when the credit card and check are returned to the customer for signature. By removing the signature requirement, we can anticipate that some patrons may unintentionally neglect to complete that step. Similar consequences can be expected for employees of industries that rely heavily on tips, such as bars, cosmetic salons and hotels.

Thus, these industries should use great care in choosing to implement the signature-free payment method, particularly when considering the effects it may have on the income of employees. One solution may be an enhanced reliance on the consumer interface: offering, for example, a tip input feature prior to the swiping of the credit card, as is already the practice in many taxi cabs. Alternatively, we may see these industries choosing to retain the signature requirement so as not to lose significant income for their employees.

These changes conform to a growing movement toward more secure methods of payment, a trend in which the United States seems to be a step behind many other developed countries. The EU had already been mandating the chip cards for years before the United States followed suit, and countries like China have been trending toward exclusive mobile payment methods like WeChat Pay and Alipay. Finally, with an increasingly present use of biometric data as a means of both collecting information and providing security, a Jetsons-like era of fingerprint and facial scanning to confirm identities of credit card users may not be such a fictional idea after all. As the nature of payments continues to evolve, retailers should be mindful not only of the unintended consequences their employees may face, but also a continued, and seemingly never-ending, need for enhanced data security.

Pop-Up Stores- From Mall Kiosks to Dedicated Mall Spaces

Posted in Pop-up Retail, Retail

It seems that everywhere we turn, there is another story about how the traditional, enclosed shopping mall is facing a slow and painful death. Big box and other brick and mortar stores are closing, and mall landlords are desperate to fill increasingly empty space. To do so, landlords are continuously attempting to cater and adapt to what the consumer wants. In today’s landscape, it seems the consumer wants pop-ups. But where does that leave the kiosk – the original pop-up store?

Mall kiosks as we know them have not enjoyed the best reputation. Known for tactics that make shoppers avoid them at all costs and for selling kitschy seasonal items, kiosks are generally not our main reason for taking a trip to the mall. The kiosks of ten, or even five, years ago meant small carts with little room for creativity or inventory that were susceptible to peak season rent increases. Despite these drawbacks, kiosks have served an important purpose for both landlords and retailers – allowing landlords to utilize otherwise dead space in the mall, and enabling retailers to test out new brands and concepts without a major investment in a long-term lease and a full-store buildout. Today, mall owners looking to include new and exciting concepts and retailers in their centers are utilizing pop-ups to do just that.

Pop-ups allow malls to bring in new, innovative, and buzzworthy brands at a time when malls are in need of a boost. Some malls are even dedicating permanent spaces, formerly occupied by traditional brick-and-mortar retailers, to various rotating pop-ups. Simon’s Roosevelt Field Mall, for example, now contains a 3,500 square foot section called The Edit where brands have the chance to feature their products and services in a temporary home within the mall.

With the pop-up store’s growing importance to the viability of the shopping mall, kiosks are seeing a bit of a revitalization. Dedicating large spaces to dozens of small, rotating pop-up retailers may make some landlords, who prefer the stability of traditional retail leases and long-term tenants, uncomfortable. That’s where kiosks come in. Landlords have already been catering to the growing needs of kiosks by running electricity and improved lighting to kiosk carts. These simple improvements have given kiosks greater control over how they showcase products and even how they charge clients. While the lifespan of a pop-up can range anywhere from days to months, kiosks can be let for somewhat longer terms, providing reluctant mall landlords with more comfort and stability.

The dedicated pop-up space has one important advantage over the pop-up kiosk, however: flexibility. When new brands come into a dedicated pop-up space—usually a blank canvas—they have the ability to design and transform the space to fit their brand and tell their story. With a kiosk, flexibility and creativity are limited by the size and space of the cart and the amenities and utilities available to it. As a result, while kiosks may have addressed some pop-up needs until now, it seems quite likely that pop-ups are here to stay and storefronts turned pop-up spaces will be the future.