Brands Beware!!!! FTC Scrutinizing Influencer Posts for Compliance with Endorsement Guides

In response to a petition from a coalition of consumer groups last year complaining about the need for disclosures by social media influencers, the FTC recently announced on April 19, 2017 that it had issued more than ninety letters reminding influencers and brands that “if there is a ‘material connection’ between an endorser and the marketer of a product – in other words, a connection that might affect the weight or credibility that consumers give the endorsement – that connection should be clearly and conspicuously disclosed, unless the connection is already clear from the context of the communication containing the endorsement.” The FTC explained that material connections could “consist of a business or family relationship, monetary payment, or the provision of free products from the endorser.” A copy of the form of the letter, which explains that clear and conspicuous disclosures are required can be found here. Continue Reading

“Oh Yes [the Court] Did” — District Court Grants Motion to Dismiss ADA Complaint Until the DOJ Issues Implementing Regulations and Renders Technical Assistance

On March 20, 2017, U.S. District Court Judge S. James Otero for the Central District of California in Robles v. Domino’s Pizza LLC, granted defendant Domino’s Pizza LLC’s motion to dismiss without prejudice and ruled that the plaintiff’s class action complaint alleging that the pizza maker’s website, www.dominos.com, and mobile website were not accessible using a screen reader designed for the blind and visually-impaired and therefore in violation of the Americans with Disabilities Act (“ADA”) and California Unruh Civil Rights Act (“UCRA”). The dismissal of the complaint without prejudice was based upon the District Court’s finding that the U.S. Department of Justice (“DOJ”) has not yet promulgated concrete guidance regarding the accessibility standards an e-commerce webpage must meet under the ADA and that this violated Dominos’ due process rights.[1]

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Who’s Got the Spirit?! Supreme Court Decides Star Athletic, LLC v. Varsity Brands, Inc.; New Two-Part Test Seeks to Clear Up the “Mess” But Questions Still Remain About the Subjective Nature of the Separabilty Analysis

On March 22, 2017, the United States Supreme Court, in an opinion written by Justice Clarence Thomas in Star Athletic, LLC v. Varsity Brands, Inc., held that “a feature incorporated into the design of a useful article is eligible for copyright protection only if the feature (1) can be perceived as a two-or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work — either on its own or fixed in some tangible medium of expression — if it were imagined separately from the useful article into which it is incorporated.”[1] The Court set forth a new two-part separability test, resolving a split between circuit courts and upholding the previous Sixth Circuit decision that the stripes, chevrons and other visual elements of Varsity Brands’ cheerleading uniform are eligible for copyright protection.[2]  The Court noted that the Copyright Act does not protect “useful articles”[3] but that “the design of a useful article” may be “considered a pictorial, graphic, or sculptural feature” to the extent that “it can be identified separately from, and are capable of existing independently of the utilitarian aspects of the article.”[4] The Court specifically limited the scope of copyright protection, if any, to the designs, excluding the shape, cut and dimensions of the uniforms.[5] The decision also clearly emphasized that it was not deciding whether Varsity’s surface decorations are in fact copyrightable (i.e., satisfy the “modicum of creativity” standard set forth in Feist Publications, Inc. v. Rural Telephone Service, Co., 499 U.S. 341, 358-359 (1991)), and that this determination is remanded for the district court to decide.[6]

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Blockchain Walks the Runway As The New FashTech Fashion Tool

The World Customs Organization and International Chamber of Commerce estimate that seven to eight percent of all world trade each year involves counterfeit goods, resulting in lost sales of $512 billion globally and $200-250 billion in the United States. [1]  Blockchain, commonly known as a core component of bitcoin in the finance sector, made its runway debut at the Shanghai Fall 2016 Fashion Week and may prove to be an effective tool against counterfeiting and diversion.

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FTC Requires that iSpring’s “Built in USA” Claims Hold Water

On February 1, 2017, the Federal Trade Commission (“FTC”) and iSpring Water Systems, LLC (“iSpring”) reached a settlement regarding its false, misleading, and unsupported claims that its water filtration systems and parts are “Built in USA,” “Built in USA Legendary brand of water filter,” and “Proudly Built in the USA.”

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FTC Grants Summary Judgment Against California Naturel, Inc. Falsely Advertising “Sun Blocked” Sunscreen Products

In its opinion in In re California Naturel, Inc., the Federal Trade Commission held that the California Naturel, Inc. advertising promoting its “all natural” sunscreen on its website as containing “only the purest, most luxurious and effective ingredients found in nature” violated Section 5 and 12 of the FTC Act.  The opinion, written by Chairwoman Edith Ramirez, noted that California Naturel admitted that eight percent of its sunscreen formula is in fact dimethicone, a synthetic ingredient.

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Don’t Lose Your DMCA Safe Harbor Protection!

The U.S. Copyright Office’s new electronic system for copyright-agent registration and maintenance goes into effect on December 1, 2016, and with it comes new rules. Beginning December 1, all online service providers must submit new designated-agent information to the Copyright Office through the online registration system. Electronic designations should be filed on December 1, 2016, or as soon as possible thereafter. Service providers who fail to timely submit electronic designations will be ineligible for the safe harbor from copyright-infringement liability provided by § 512(c) of the Digital Millennium Copyright Act.

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“E-Commerce must live up to its promise…”

These are the words of Europe’s chief antitrust enforcer, Margrethe Vestager, introducing the Commission’s public hearing on October 6, 2016, on its preliminary findings of the e-commerce sector inquiry. The promise of e-commerce alluded to by the Commissioner for Competition means quite simply a wider choice of goods available for purchase online, at lower prices across the EU as well as cross-border access to digital content for consumers in the EU. The major concern for the Commission is that e-commerce still takes place nationally within the EU and not on a cross-border basis across the 28 Member States, because of contractual barriers erected by companies.

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On the Way to a European Digital Single Market: Whether You Sell Online or Offline – Listen Up!

The European Commission’s Directorate-General for Competition has issued a lengthy preliminary report of its ongoing sector inquiry into the e-commerce of goods and digital content. The sector-wide inquiry was launched on May 6, 2015, in the context of a wider legislative initiative by the Commission implementing its Digital Single Market strategy. The ongoing inquiry and impending future enforcement actions will have major implications on the law and enforcement of product distribution in Europe, both online and offline.

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Punching the Clock in the 21st Century: Could Your Bonuses and Promotions Be Determined By Wearable Tech?”

From Apple Watches to Fitbits, the market for wearable technology has steadily increased over the years.  In 2015, just under 50 million wearable devices were shipped.[1]  Additionally, the wearables market is expected to increase 35% by 2019.  As the wearable technology trend increases, many companies are beginning to view wearables as a way to efficiently increase both employee health and productivity.[2]

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