The Court of Justice of the European Union (CJEU) confirmed in a short judgment of 6 December 2017 that a prohibition imposed on authorized distributors from using third party platforms for the sale of their luxury products is in line with European competition law provided certain conditions are met. This judgment also ends an ongoing debate and confirms that selective distribution systems are indeed permissible if they are used to preserve and enhance the luxury image of a product. This outcome is not surprising to those familiar with the Court’s case law and is welcomed by companies running selective distribution networks to market their luxury products. However, the judgment is specific to the facts at hand and bans relating to online platforms will have to be reviewed on the basis of the merits of each case and of the products concerned. Continue Reading
In our previous blog post, “Brands Beware!!! FTC Scrutinizing Influencer Posts for Compliance with Endorsement Guides,” we reported that the Federal Trade Commission (“FTC”) had issued more than 90 letters to brands and influencers, making it clear that it is paying close attention to influencer-based marketing. More recently, the letters have been made publicly available, providing valuable insight into the types of disclosures that the FTC considers unacceptable or inadequate. Continue Reading
Retailers and other employers regularly consider the backgrounds of job applicants and employees when making personnel decisions. It is not illegal for employers to ask questions about an applicant’s criminal history, or to require a background check. However, whenever an employer requests background information about a job applicant or employee, the employer must comply with federal and state laws. Within the last five years, employers have been put under increased scrutiny, especially when they require criminal background checks during the hiring process. This article summarizes recent legal trends regarding criminal background checks in the employment context, and discusses how employers—particularly those within the retail industry—can ensure compliance with the law. Continue Reading
Ok, ok, don’t panic. Maybe not all of the millions of dedicated readers of this blog are in violation.
Nevertheless, as of June 1, if your company does business in France, it may be time to check your anticorruption compliance obligations. Continue Reading
This is not a drill.
Companies and law enforcement agencies around the world have been left scrambling after the world’s most prolific ransomware attack hit over 500,000 computers in 150 countries over a span of only 4 days. The ransomware – called WannaCry, WCry, WannaCrypt, or WannaDecryptor – infects vulnerable computers and encrypts all of the data. The owner or user of the computer is then faced with an ominous screen, displaying a countdown timer and demand that a ransom of $300 be paid in bitcoin before the owner can regain access to the encrypted data. The price demanded increases over time until the end of the countdown, when the files are permanently destroyed. To date, the total amount of ransom paid by companies is reported to be less than $60,000, indicating that companies are opting to let their files be destroyed and to rely instead on backups rather than pay the attackers. Nevertheless, the total disruption costs to businesses is expected to range from the hundreds of millions to the billions of dollars. Continue Reading
On April 18, President Trump signed a new executive order (EO) at a ceremony in Kenosha, Wisconsin. The EO is entitled “Buy American and Hire American” and focuses on these two themes, with the President’s stated goal of ending the “theft of American prosperity” by focusing on American workers and products. While the details of how the new EO will be applied will undoubtedly take months to implement (pending numerous agency-level reviews), companies doing business with the federal government, or with an interest in foreign high-skill workers, should be aware of these new developments so that they can prepare for the adjustments they will need to make in the near future, as the President’s efforts to put American workers first take shape. Continue Reading
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
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.
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.” 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. The Court noted that the Copyright Act does not protect “useful articles” 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.” The Court specifically limited the scope of copyright protection, if any, to the designs, excluding the shape, cut and dimensions of the uniforms. 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.
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.  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.