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Client Alerts 52 results
Client Alert | 3 min read | 10.15.24
Can False Claims of Patent Protection Land You in the False Advertising Dawg(s) House?
The Federal Circuit recently held that a claim that a product is protected by patents when it is not may constitute false advertising. Defendants in this case, Dawgs Inc., accused the makers of Crocs of using the terms “patented,” ‘proprietary,” and “exclusive” in its advertising in a manner that misled consumers about the nature, characteristics, or qualities of its own products and the products of its competitors. Specifically, Dawgs alleged that Crocs made promotional statements that a patent covers its Croslite shoe material, that Croslite has numerous tangible benefits found in all of Crocs’ shoe products and that, because Croslite is “patented,” others’ products lack these same benefits. Crocs, Inc. v. Effervescent, Inc., No. 2022-2160, 2024 U.S. App. LEXIS 25001 (Fed. Cir. Oct. 3, 2024).
Client Alert | 4 min read | 05.20.24
On May 14, 2024, the Netherlands Authority for Consumers and Markets (the “ACM”) revealed that they were fining Epic Games 1,125,000 Euros for violating “professional diligence,” following ACM’s 2023 finding that the developer of Fortnite created an environment that pressured children into make purchases in its video game. In issuing the fine, the Decision declared that “ACM is making it known that unfair treatment of children in the digital world is particularly grave and will be dealt with severely.”
Client Alert | 4 min read | 03.19.24
Attorneys General of Both Political Parties Remain Focused On Greenwashing
Last week, New York Attorney General Letitia James filed a lawsuit against JBS USA Food Company and JBS USA Food Company Holdings (JBS USA), which together make up the American subsidiary of the world’s largest beef product producer, JBS S.A. The suit alleges that JBS USA engaged in “greenwashing,” misleading consumers about its environmental impact goals. The suit is one amongst many state attorney general lawsuits related to greenwashing or ESG claims, which have spanned across the aisle and been initiated by both Democratic and Republican attorneys general.
Client Alert | 3 min read | 03.05.24
Scrutiny of Green Claims is in Fashion: Zalando Forced to Overhaul Sustainability Claims
Europe’s biggest online fashion retailer, Zalando, recently agreed to dramatically and rapidly overhaul its sustainability marketing in the face of pressure by the European Commission. This is yet another example of why companies need to be extremely careful when making environmental claims in their advertising. Such claims are facing increasing regulatory scrutiny and activist litigation in the European Union, the United Kingdom, the United States and elsewhere around the globe.
Client Alert | 3 min read | 11.16.23
On November 7, 2023, the Federal Trade Commission (“FTC”) announced it is challenging over 100 patents as improperly listed in the Food and Drug Administration’s (“FDA”) publication titled “Approved Drug Products with Therapeutic Equivalence Evaluations,” which is commonly known as the Orange Book. The FTC sent warning letters to ten drug and medical device manufacturers identifying patents for inhalers, autoinjectors and anti-inflammatory multi-dose bottles that the FTC believes are improperly listed. In the letters, the FTC indicated it is using the FDA’s regulatory dispute process to challenge the listing of these patents in the Orange Book because improperly listing patents may violate antitrust laws and impede competition. The FTC’s actions appear to be consistent with its recent and increased scrutiny of the healthcare and pharmaceutical industries.
Client Alert | 8 min read | 08.10.23
On June 29, 2023, the Supreme Court vacated the 10thCircuit’s decision in Abitron Austria GmbH et al. v. Hetronic International Inc. (“Hetronic”). The Supreme Court principally held that the Lanham Act does not have extraterritorial application. As Crowell previously discussed, the Supreme Court sought briefing on Hetronic from the U.S. Solicitor General, signaling an interest in addressing the Tenth Circuit’s decision, the extraterritoriality of the Lanham Act, and the complex circuit split that has at least three distinct tests. Although the Court agreed 9-0 that the lower court’s decision should be vacated, Justice Alito’s majority opinion and Justice Sotomayor’s concurring opinion disagreed on the second step of the extraterritoriality test, specifically regarding whether foreign conduct can have domestic implications. The majority disagreed with both the Tenth Circuit and the Solicitor General, concluding that the Lanham Act cannot apply to foreign defendants’ foreign conduct.
Client Alert | 4 min read | 05.22.23
Andy Warhol, Commercialism, and The Doctrine of Fair Use
On May 18, 2023, the US Supreme Court issued a long-anticipated decision in Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith, which alters the Courts’ interpretation of the copyright fair use doctrine. Specifically, the Court, in a majority opinion written by Justice Sotomayor, affirmed an earlier Second Circuit decision and held that the “purpose and character” factor of the fair use test does not focus on whether the new work is “transformative.” “[I]nstead, the analysis focuses on whether an allegedly infringing use has a further purpose or different character, which is a matter of degree, and the degree of difference must be weighed against other considerations, like commercialism.”
Client Alert | 6 min read | 03.13.23
Everyone’s Talking AI, Including the FTC: Key Takeaways from the FTC’s 2023 AI Guidance
On February 27, 2023, the Federal Trade Commission (“FTC”) Division of Advertising Practices updated their business guidance on the usage of Artificial Intelligence (“AI”) for 2023. In their post titled “Keep your AI claim in check”, the FTC guides marketers on how best to legally and efficiently utilize AI in advertising and avoid AI washing. Building upon the FTC’s previous AI guidance of 2020 and 2021, this year’s iteration emphasizes that false or unsubstantiated claims about a product’s efficacy—including those that involve promises about the ability of AI—runs afoul of the FTC Act. Specifically, the FTC reminds marketers of the following questions that they should consider with the increasing use of AI in products:
Client Alert | 2 min read | 02.03.23
Green Guides Comment Deadline Extended
#ICYMI—The Federal Trade Commission (“FTC”) extended the public comment period on its solicitation for public comments regarding potential updates and changes to the Green Guides (Guides for the Use of Environmental Marketing Claims) by 60 days. On December 14, the FTC held an open meeting and voted to notice the public comment period. On December 20, the FTC noticed the public comment period on the Federal Register, which would have originally expired on February 21, 2023. All public comments must now be filed by April 24, 2023.
Client Alert | 3 min read | 12.15.22
FTC Seeks Public Comments on the Green Guides
The Federal Trade Commission (“FTC”) announced it is seeking public comment on potentially updating, expanding, and/or altering the Guides for the Use of Environmental Marketing Claims, known as the Green Guides (16 CFR pt 260). Yesterday, December 14, 2022, the FTC held an open Commission meeting where the Commissioners voted 4-0 to approve the publication of a Federal Register notice announcing a public comment period. The notice is expected to be published in mid-January. Once the notice is published in the Federal Register, comments will be due within sixty days.
Client Alert | 5 min read | 12.01.22
On November 21, 2022 the U.S. Supreme Court agreed—after passing on the issue once before—to hear Jack Daniel’s (JDPI) challenge to the Ninth Circuit’s ruling in VIP Prods. LLC v. Jack Daniel’s Props, where the Ninth Circuit affirmed without opinion the district court’s grant of summary judgment to VIP and the dismissal of JDPI’s trademark infringement claim,[1]
on the grounds that JDPI could not satisfy either prong of the Rogers test. The Rogers test balances free expression under the First Amendment against the trademark protections of the Lanham Act. The Supreme Court granted certiorari on the questions of whether parody uses of another’s mark receive First Amendment protection from liability under the Lanham Act and whether parody is exempt from claims of dilution by tarnishment under 15 U.S.C. § 1125(c)(3)(C). The decision could clarify the balance between trademark and the First Amendment, an issue that has long-confounded practitioners.
Client Alert | 7 min read | 11.08.22
U.S. Supreme Court to Decide the Extraterritorial Application of the Lanham Act
The U.S. Supreme Court is poised to clarify the extraterritorial reach of the Lanham Act for the first time in seventy years. The decision will impact corporations’ ability to seek damages for international trademark infringement, and may resolve a circuit split on the applicability of the Lanham Act on foreign defendants’ foreign conduct. The Court will review the Tenth Circuit’s decision in Abitron Austria GmbH et al. v. Hetronic International Inc. (“Hetronic”) and the extraterritoriality of the Lanham Act, seemingly the Court’s desired outcome after requesting the United States weigh in on Abitron Austria GmbH’s (“Abitron”) certiorari petition filed in January 2022.
Client Alert | 4 min read | 09.20.22
New Federal Report on Microfiber Pollution Spotlights Textile and Fashion Industries
A new draft report to Congress by the U.S. Environmental Protection Agency and the National Oceanic and Atmospheric Administration on behalf of the Interagency Marine Debris Coordinating Committee cites textiles and the fashion industry as the leading sources of microfiber pollution in the environment. While the draft report acknowledges uncertainty about how microfiber pollution impacts the environment and human health, the report’s authors recommend that the textile and fashion industry—along with manufacturers of clothes washers and dryers and personal care products—design their products to prevent microfibers from being released into the environment.
Client Alert | 4 min read | 06.13.22
In the bag (for now): Hermès survives motion to dismiss in MetaBirkin NFT lawsuit
Earlier this year, Hermès filed a trademark infringement suit against Los Angeles-based designer Mason Rothschild for creating and selling faux-fur digital renditions of the luxury Hermès Birkin handbags and using a collection of 100 NFTs, titled “MetaBirkins,” to authenticate the digital images.[1] In response, Rothschild filed a motion to dismiss Hermès’ trademark infringement claim under the Rogers test on the basis that the digital images of the Birkin bags are “art” and, therefore, receive First Amendment protection.[2]
Hermès opposed, arguing that the Polaroid factors— instead of the Rogers test—should apply, to assess likelihood of confusion.[3]
On May 18, 2022, the court denied Rothschild’s motion to dismiss, concluding that: (1) the Rogers test applies to the trademark infringement analysis of the “MetaBirkins” title, and (2) the Polaroid factors apply to the explicit misleadingness analysis.[4]
Client Alert | 2 min read | 03.31.22
Will the Supreme Court More Clearly Illustrate Fair Use?
The United States Supreme Court has decided to revisit the copyright doctrine of fair use in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith. The case involves a collection of Warhol’s silkscreen prints and pencil illustrations based on Lynn Goldsmith’s copyrighted photograph of the artist Prince. The Warhol illustration was originally commissioned by Vanity Fair magazine in 1984, but Warhol later created his own series of artwork based on the photograph, which Goldsmith argued was an infringement of her copyright. The Warhol Foundation responded by invoking the fair use defense. The Second Circuit decided that the Warhol works did not constitute fair use of the photograph, concluding that all four of the factors in the fair use test favored Goldsmith.[1]
Client Alert | 3 min read | 03.14.22
See You in the Metaverse: What Brands Need to Know
In recent months, the metaverse, a term that is meant to encompass a mixture of virtual reality and augmented reality, has increasingly become a conversation topic for companies and consumers. Companies have begun to invest in this space and have started staking out virtual property on platforms like Decentraland and The Sandbox. Lawsuits and trademark applications have also popped up alongside these investments. This recent legal activity indicates that the metaverse will be a critical area for companies to begin to learn about and monitor to ensure they are adequately protecting their intellectual property and avoiding risk.
Client Alert | 2 min read | 04.22.21
Companies who make ambitious marketing claims about purported clean energy efforts may find that they are exposed to litigation under the District of Columbia Consumer Protection Procedures Act (DCCPPA). The DCCPPA is an expansive consumer protection law that confers standing on any person, or nonprofit organization, to sue either on behalf of herself or “in the public interest” for false advertising. A recent DCCPPA lawsuit against energy giant, Exxon Mobil Corporation, serves as the latest example of a swelling risk to corporate defendants who may be subject to suit in the Superior Court of the District of Columbia. Companies should thus carefully advertise their clean energy efforts, or other forward-leaning activities, in a manner that closely and accurately reflects the steps it is taking to achieve those goals.
Client Alert | 3 min read | 04.15.21
Made in USA Settlement for Chinese Imports
Promotional products seller Gennex Media LLC and its owner, Akil Kurji, have settled Federal Trade Commission (“FTC”) charges that they made false, misleading, or unsupported advertising claims that their “Brandnex” customizable promotional products were “all or virtually all” made in the United States. Despite numerous claims that the company’s novelty items were “Made in the USA,” “USA Made,” and “Manufactured Right Here in America!”, the items were wholly imported from China.
Client Alert | 5 min read | 03.15.21
The CASE Act of 2020—New Board to Provide Low-cost Resolution of Copyright Small Claims
The Copyright Alternative in Small-Claims Enforcement (CASE) Act of 2020 creates a new, inexpensive claims resolution process that may provide copyright holders with previously unavailable recovery opportunities. Copyright holders continuously struggle with the costs of defending their intellectual property rights. Earlier government publications have assessed that while typical infringement claims are valued below $3,000, litigating a copyright case through appeal costs about $350,000 on average. In such cases, there is no monetary incentive to sue, even for obviously meritorious claims. Victims of small-scale infringement should consider whether to utilize this new process, while larger clients should take note of the CASE Act’s unique provisions and should prepare for a potential increase in copyright small claim litigation that was previously cost-prohibited.
Client Alert | 3 min read | 03.08.21
Deep Sixed: Federal Circuit Boots Trademark Licensee for Meritless Claims Against U.S. Army
On March 4, 2021, the Federal Circuit spoke pointedly on its view of contract interpretation and contract obligations in the context of trademark licensing agreements between private and government actors. In Authentic Apparel Group, LLC v. United States, No. 2020-1412 (Fed. Cir. Mar. 4, 2021), the court upheld the Court of Federal Claims’ decision, on summary judgment, that the Army did not violate its obligations under a trademark licensing agreement with Authentic Apparel Group, LLC (“Authentic”). Authentic, the licensee, claimed that the Army violated the terms of the licensing agreement by refusing to approve certain products and marketing materials bearing Army trademarks. These included a proposed shoe line and an advertisement featuring Dwayne “The Rock” Johnson. The Federal Circuit disagreed.
