State AGs Fail in Objections to Proposed Settlement in Class Action Challenging Godiva’s Labeling Practices

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The last thing the parties to a class action settlement want to see is an objection from state Attorneys General (AGs).  AG objections to class action settlements are relatively rare and courts tend to give AG objections more weight than objections from private parties.  Not all AG objections are successful, however, and in the recent consumer fraud case of Hesse v. Godiva Chocolatier, Inc., No. 1:19-cv-972-LAP (S.D.N.Y.), a six-state objection filed by the AGs of Florida, Idaho, Maryland, New Jersey, Ohio, and Utah failed to persuade Judge Loretta Preska to reject the proposed settlement.

Hesse concerned Godiva’s use of the word “Belgium” in labeling and promoting its products.  According to the complaint, this practice led consumers to believe, incorrectly, that Godiva’s chocolates are made exclusively in Belgium and to pay higher prices for these products than they otherwise would have.  The parties’ proposed settlement of those claims is fairly standard stuff.  Anyone who purchased Godiva chocolate products between 2015 and last year could file claims to recover $1.25 per purchase.  Class members with proof of purchase could recover up to $25 (for 20 purchases); those without proof were capped at $15 (for 12 purchases).  Plaintiffs claimed actual damages to be $0.46 per purchase, so they characterized this relief as more than full recovery.

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NFT Infringement: No Free Taking or New Fair Transformations?

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Earlier this month sports apparel giant Nike sued StockX LLC, a Michigan-based sneaker and streetwear resale marketplace, for offering to its customers non-fungible tokens (NFTs) depicting Nike’s sneakers.  The claims asserted in the February 3 complaint filed in federal court in the Southern District of New York include trademark infringement, trademark dilution and unfair competition, all stemming from inclusion of Nike’s trademarks (e.g. Nike, Air Jordan, Jumpman, the “Swoosh” Design) in the shoe images depicted in the NFTs provided by StockX.

This is not the first case of its kind.  In January, Hermes sued a digital artist for unauthorized reproductions of its well-known Birkin bag in a line of NFTs released by the artist called “Metabirkins.”  And before that, in November 2021, Miramax – the studio that produced the 1994 cult movie classic Pulp Fiction filed suit to enjoin Quentin Tarantino from releasing NFTs based off of his original handwritten script of the movie, including scenes from an early script that were cut from the final version.

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Cross-Class Confusion: Your Rights are Stronger than You Might Think!

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You’ve done the work of securing a federal trademark registration and now face the matter of enforcement against a potential infringer. Are the classes and goods specified in that registration now a double-edged sword?

Say your business, Company A, sells a premium line of clothing for chefs, widely recognized in the restaurant industry for both its durability and stylish design. You’ve worked hard to build the brand and made sure to protect its reputation by registering Company A’s trademarks with the USPTO—in particular, Class 25 for clothing. Much to your dismay, however, a customer has brought to your attention Company B’s new line of kitchen utensils that uses a conspicuously similar name and logo. While initially sold at retail outlets, this new line of cutlery has grown in popularity with some of the nation’s top restaurants. When you reach out to Company B for an explanation, they direct you to your own now-glaring lack of any registration for goods in Class 21 for household utensils. Your brand, despite taking the cooking world by storm, is not quite famous enough to pursue a dilution claim. Are you out of luck in pursuing a claim for infringement?

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IP Litigation Considerations in Light of Court Closures and Stay at Home Orders

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The mechanics of litigation in the federal courts have changed dramatically over the course of the past two months.  Intellectual property enforcement is certainly not immune to these changes.  Now that stay at home orders have been in effect in many states, enforcing copyright, trademark and other intellectual property rights through litigation involves a different set of considerations.  Here are a few of the more significant considerations you can’t afford to ignore:

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Tips for Using Data Privacy Compliance to Enhance Your Brand

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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.

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Restricted Access to WHOIS Data Jeopardizes Brand Owners Online

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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.

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Introducing TCAMToday – a Faegre Drinker℠ blog on T®ademark, ©opyright, Advertising & Media

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Faegre Drinker Biddle & Reath LLP (Faegre Drinker) launched global operations on February 1, 2020. Faegre Drinker is the combination of Faegre Baker Daniels, an international law firm with deep roots in the Midwest, and Drinker Biddle & Reath LLP, a full-service national law firm with storied East Coast origins.

With more than 1,300 attorneys, consultants and professionals in 22 locations across the U.S., U.K. and China, Faegre Drinker is one of the nation’s 50 largest law firms based on size and projected gross revenue.

We are very excited to introduce TCAMToday, Faegre Drinker’s successor to the DB®anding Blog.  Our newly expanded team of over 30 T-CAM professionals will continue to provide fresh commentary on Trademark, Copyright, Advertising and Media topics ranging from anticounterfeiting to sweepstakes and promotions.  Watch this space!

Strategies for Squashing Sketchy Specimens

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So your time-of-filing trademark watching service [1] warned you that someone filed a use-based application to register a mark that’s awfully close to your mark.

You drill into their application file history and notice that their proof of use of their trademark looks like this:

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A Look at Brand Lifeguarding: Trademark Watching

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In a September 6, 2018 webinar hosted by CompuMark, I presented on the very important topic of trademark watching services. Thanks to CompuMark for inviting me to speak, and to everyone who attended the webinar and asked great questions!  (If all goes according to plan, future blog posts may cover some of the questions we ran out of time to answer during the webinar).  For those who weren’t able to make the webinar during the live presentation, you can access a copy on CompuMark’s website (you’ll need to register on the right side of the screen).

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