First released in 2000 and updated in 2013, the FTC’s .com Disclosures guidance has been relied on by advertisers hoping to “make effective disclosures in digital advertising” for the last two decades. The FTC’s Leslie Fair recently explained that the guidance has grown a bit stale, especially in light of how quickly technology changes. In a June 3, 2022 blog post, Ms. Fair shared that the .com Disclosures document would be getting a “start to finish reboot, given the major changes in advertising tactics and techniques that marketers use.” In connection with this effort, the FTC issued an extensive Request for Information from the public, with all comments due to the FTC on or before August 2, 2022. Being aware that new guidance is likely coming sometime in 2023 is useful as a “save-the-date” and makes the advertising law nerds among us excited, but an update to the .com Disclosures also has practical implications.
The Faegre Drinker Intellectual Property Team is committed to our clients and contacts during this difficult time. It was impossible to listen to the news of the last week and be unaffected as many ordinary things we take for granted changed so quickly. Because of the coronavirus pandemic, Faegre Drinker has asked our colleagues to work remotely until at least March 31, 2020. Like so many of you, our priority is protecting the health and safety of our colleagues, clients, visitors and their loved ones. We also want to do our part to contain the pandemic.
If trademark infringement and dilution are frequent headaches for brand owners, counterfeiting – which the U.S. Trademark Act defines as use of “a spurious mark identical with, or substantially indistinguishable from, a registered mark” – is a migraine. As a practical matter, counterfeiting in most cases renders perfunctory the task of analyzing the “likelihood of confusion factors” required in traditional infringement cases. In counterfeit cases, the marks and goods are identical, and the counterfeit mark was applied with the intent to deceive consumers into believing that fake goods are genuine, so it’s reasonable to assume it will do exactly that.