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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Rah! Rah! Sis Boom Bah! Supreme Court to Decide Whether Copyright Act Protects Cheerleader Uniform Designs

In August 2015, the United States Sixth Circuit Court of Appeals held in Varsity Brands, Inc.. v. Star Athletica, LLC, 799 F.3d 468 (6th Cir. 2015), that the stripes, chevrons and other visual elements that appear on a cheerleading uniform could be protectable under United States copyright law.  While clothing is generally considered to be the kind of “useful item” that cannot be protected by copyright law, the Sixth Circuit held that the cheerleader outfit design is conceptually separable from the utilitarian aspects of the uniform.  “Because we conclude that the graphic features of Varsity’s designs can be identified separately from, and are capable of existing independently of, the utilitarian aspects of cheerleading uniforms, we hold that Varsity’s graphic designs are copyrightable subject matter,” Circuit Judge Karen Nelson Moore wrote for the majority.  A copy of the Sixth Circuit decision can be found here.

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European Court of Justice to Rule on Legality of Online Sales Bans

An appeal court in Frankfurt has asked the European Court of Justice to clarify the application of the competition rules to online sales. The Frankfurt court made its request in the context of a dispute between a leader in beauty products with an extensive portfolio of beauty brands and its German distributor. The supplier of beauty products operates a selective distribution system in Germany to manage how its products are sold and has taken its distributor to court for selling products over online platforms, such as Amazon.com and eBay. The Frankfurt court is seeking guidance from the European Court of Justice on whether a supplier can prohibit its distributor from selling its goods on online marketplaces, regardless of whether the distributor has met the criteria of the selective distribution system. This question is highly topical in the EU and particularly in Germany, where the German competition authority and the courts have recently taken divergent positions. The German competition authority has issued rulings prohibiting suppliers of branded goods from restricting internet sales by retailers and, in particular, over third party platforms such as eBay and Amazon.com. These rulings have been in contradiction with the stance taken by the German courts, such as the Higher Regional Court of Frankfurt, which recently decided that a branded manufacturer acted lawfully when banning its authorized retailers within its selective distribution system from selling its products on online marketplaces. According to the Higher Regional Court, a manufacturer has a legitimate interest in ensuring that its branded products are perceived as high-quality products sold with the requisite level of sales advice and a manufacturer is, therefore, free in principle to decide under which conditions its products are sold, provided that these conditions are necessary to meet its quality standards. It is expected that the European Court of Justice will issue its ruling on this issue within the next 15 months or so.

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A Proposition 65 Violation May Be Lurking in Your Cash Register Receipt

Many consumer-facing businesses have learned to identify high-risk Prop 65 targets:  soft, flexible plastics; faux and colored leathers; and any kind of brass or metal that may contain lead or other heavy metals.  But businesses need to take action to avoid Prop 65 liability based on a new culprit: bisphenol-A (BPA) that may be lurking in your cash register receipts and other thermal papers.  Continue Reading

The FTC Cracks Down On March 2015 Lord & Taylor Social Media Launch: Native Advertisers Beware!

Recent efforts by the Federal Trade Commission (“FTC”) to regulate the use of native advertisements — a popular and growing advertising tool– have resulted in the first enforcement action. On March 15, 2016, the FTC settled charges brought against New York retailer Lord & Taylor, LLC (“Lord & Taylor”), arising from Lord & Taylor’s March 2015 social media campaign targeted at 18 to 35-year old women its launch of its new Design Lab Collection, signaling the FTC’s intention to more heavily regulate the use of social media influencers to advertise fashion apparel.  The FTC complaint alleged that Lord & Taylor promoted the launch of the Design Lab Collection and a featured Design Lab paisley dress design through native advertising, including a Lord & Taylor-sponsored article in the online publication Nylon, and a Nylon Instagram post that was approved by Lord & Taylor.  The FTC complaint alleged that Lord & Taylor paid fifty online fashion “influencers” to post Instagram pictures of themselves wearing the same Design Lab paisley dress.  A copy of the consent order and complaint are attached. The exhibits to the complaint can be found here. Continue Reading

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