Due to the sheer volume of recent media coverage, readers of this blog are likely familiar with the “metaverse,” or the idea of a virtual world where users can interact with an immersive computer-generated environment, objects, and other users. But why does anyone care about trademarks in the metaverse? Put simply, trademarks are almost certain to insert themselves in several scenarios in these immersive environments that are designed to be an extension or replica of the real world, such as:
Creation of virtual shops to buy branded “virtual” goods;
Branded virtual services, such as fitness classes, concerts, performances, or sporting events;
Product placement, such as virtual characters wearing branded virtual goods or display of virtual advertisements within the metaverse; and
Real and virtual combination marketing, where buying a real-world product allows the user to obtain a copy of the product in the virtual world as well for use in the metaverse.
Since the SARS-CoV-2 pandemic began, many companies have continued to develop antimicrobial products and devices to address health and safety concerns. Many of those companies are surprised to learn that the way in which they are marketing their products may subject them to regulation by EPA under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA).
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.
Even before COVID-19 had turned each of us into an amateur epidemiologist, companies in nearly every industry had begun to recognize the magnetic appeal of health and wellness claims in consumer advertising. Marketers of everything from cleaning products to apparel to furniture to homes were suddenly making claims touting the health and wellness benefits of their products. It wasn’t just better, it was better for you and your family. It will surprise no one to learn that the pandemic year of 2020 only intensified this trend, as consumers focused as never before on the ways that their purchases might not only help them live better lives, but perhaps even keep them alive.
Predictably, competitors, regulators and the plaintiff’s bar have all taken notice of this trend, and moved aggressively in response. In 2020, for example, the BBB National Programs’ National Advertising Division (NAD), the nation’s premier forum for competitor initiated advertising challenges, recorded an extraordinary 50% uptick in challenges to health-related advertising. Similarly, the Federal Trade Commission (FTC), Food and Drug Administration (FDA), Environmental Protection Agency (EPA), and state regulators across the country have focused intense scrutiny on companies claiming to offer health benefits to consumers often desperate for help. It is natural to predict that class actions and Lanham Act activity will soon reflect these trends as well.
In a world where social media influencers can wield more power over consumers than network media buys, the Federal Trade Commission’s (FTC) Endorsement Guides felt increasingly like a relic from an earlier era. While not wholly ineffective, the FTC’s formal guidance to businesses on the use of endorsements and testimonials in advertising was still a policy with roots in the limited media environment of the 1970s, the decade when the Guides originated. There were no Instagram influencers, no sponsored posts, and no hashtags in 1980, when the Guides were finally enacted, and even cable television was in its infancy. And despite important and well-intentioned 2009 amendments crafted during the early days of social media, so much has happened in the intervening years that the Guides never seemed fully engaged with the radical implications of a marketing environment where blurring the lines between advertising and reality is more often a feature rather than a bug.
Companies in 2020 must comply with more data privacy laws than ever before. Effective on January 1, the California Consumer Privacy Act (CCPA) contains the most complex data privacy compliance requirements in U.S. history. Some other states have their own requirements, and more states are following suit; many are considering data protection laws while their legislatures are in session.
Compliance with the CCPA and other relevant privacy laws and industry standards involves much more than a brief privacy law update and presents multiple opportunities for customer engagement. Consider using those opportunities to enhance your relationship with your customers. How companies handle consumer data has already become one way in which consumers evaluate whether to do or continue doing business with a particular company. Poorly handled data privacy issues quickly create negative customer experiences, online reviews, and bad press. Differentiate your company by handling customer data — and customer relationships — with intentionality and care.
As many brand owners know, WHOIS data is the publicly available information on who has registered a particular internet domain name. In layman’s terms, WHOIS records are akin to land title or property tax records: a record of who owns the internet property of domain names available in .com, .net and other generic top-level domain (gTLD) spaces. Each WHOIS record contains basic contact information for the domain name registrant: name, address, phone number, email address and certain other technical attributes. Since the dawn of the internet, gTLD registrars and registries – those companies who sell domain names – have collected contact information from all registrants at the time of registration.
As a trademark attorney, devoted Baltimore Ravens fan, and furtive TMZ reader, I couldn’t help but notice this story authored recently, describing how Mark Ingram’s aspirations of registering BIG TRUSS in the US Trademark Office are (potentially) being blocked by someone who applied to register the phrase first.
For those uninitiated, “Big Truss” is the pet name for Ravens quarterback Lamar Jackson, coined by Mark Ingram, Ravens running back. Mark and Lamar’s well-documented bromance is one for the ages. The phrase first captured public attention when Mark Ingram uttered it in a November 21, 2019 press conference, although the origins of “Truss” appear to date back much further, to a 1991 album by Public Enemy, as this fascinating Baltimore Sun article explains. The BIG TRUSS application blocking Mr. Ingram’s attempts to register the phrase was filed on December 13, 2019 – 3 weeks after the aforementioned press conference, and candidly, a lifetime in the trademark world.
The recent U.S. Supreme Court decision in Iancu v. Brunetti will likely not be the last word on the subject of scandalous trademarks being granted registration. That certainly suggests there is room for further interpretation in the future, especially if Congress elects to amend the Lanham Act. Further, four Justices voiced some degree of concern about scandalous marks being granted registration.
The ability of any individual, without access to sophisticated technology, to decipher the “authenticity” of any experience is diminishing daily. Moreover, this threat to the integrity of the law goes beyond digital impersonation and “deep fake” software driven by artificial intelligence. The famous Marx Brothers line, “Who ya gonna believe, me or your own eyes?” was once funny because it was ridiculous. Soon, it will be a description of our jobs and our lives.
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