It’s April, which means it’s time for Earth Day. But for so many consumers, sustainability is top of mind all year. Consumers are constantly seeking out products and services that they can feel good about using and purchasing. And marketers want to tout what their company is doing to be good to the environment. As a result, the marketplace is flooded with claims that our household cleaners are “non-toxic” and our packaging is “recyclable” along with many other environmental benefit statements for products and services.
To avoid what’s commonly known as “greenwashing,” marketers need to ensure that statements made about the environmental benefit of their products or services are clear, truthful, and evidence-based. A top resource in this area is the Federal Trade Commission’s “Green Guides,” which can help companies avoid making environmental benefit claims that can attract regulators and mislead consumers. While the Green Guides are not FTC regulations, they provide detailed guidance on the types of claims that the FTC considers deceptive under Section 5 of the FTC Act, which broadly prohibits “unfair or deceptive acts or practices in or affecting commerce.” (15 U.S.C. § 45(a)(1).) Although these Guides have not been updated in almost 10 years, they remain instructive when it comes to a review of environmental benefit claims.
Intellectual property rights holders are constantly seeking creative ways to protect their brands, including preventing counterfeit products from entering the marketplace. There are the traditional methods – such as federal trademark registration with the United States Patent and Trademark Office – that are well-known to most companies. However, many companies are less familiar with the high-value, low-cost enforcement tools available through a Customs Recordation filing with United States Customs and Border Protection.
United States Customs and Border Protection (CBP) can be a vital partner in your company’s efforts to enforce its trademarks and copyrights, and to stop counterfeit imports. Intellectual property enforcement is currently a “Priority Trade Issue” for CBP, and the increased focus on such enforcement is highly beneficial to companies who can then leverage CBP’s database and workforce to identify and stop counterfeit product imports. CBP uses the information contained in its database of recorded trademarks and copyrights in order to target and seize imports of counterfeit and pirated goods at various U.S. ports of entry. In FY 2019, CBP seized more than 27,000 shipments containing counterfeit goods, enforcing over 18,500 active recordations1. Notably, CBP rarely takes action to detain or seize goods displaying trademarks or copyrights that are not recorded; therefore, it is critical to include CBP recordation as part of your enforcement strategy.
This month’s dramatic announcement by the U.S. Patent and Trademark Office that all foreign domiciled trademark applicants, registrants and parties to USPTO trademark proceedings will now be required to retain U.S. counsel is expected to result in the most significant practical change to domestic trademark prosecution practice in years.
For casual observers, this new rule — set to be effective on Aug. 3, 2019 — may have arrived as an unexpected, or even shocking, development. After all, with this announcement, literally tens of thousands of active, foreign-domiciled participants in the trademark processes of the USPTO will suddenly now require representation by a U.S. attorney, altering years of common practice.
Moreover, the time from announcement to implementation — only 32 days — is remarkably short for agency action of any kind, let alone a new rule set to transform the role of trademark practitioners in relation to a massive class of new clients.
Read the full article on Law360.