Under Review: The FTC’s Focus on the Fakes

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You are thinking about buying a new laptop, or you want to try a new restaurant that’s been open a few months, so what do you do first? You check the online reviews, of course. Most consumers rely heavily on online reviews to make purchases and try new services, but how can you be sure the reviews you see are actually written by a real customer? And wouldn’t you want to know if the customer was paid or given free product in exchange for that review? The proliferation of online shopping platforms and social media have increased opportunities for consumers to find information about potential products they want to buy. However, it also makes it easier for companies to manipulate reviews or endorsements to make their products look better or their competitors look worse. Luckily, the Federal Trade Commission (FTC) is currently prioritizing this issue, through regulatory channels, enforcement actions, and litigation.

For background, when an advertiser uses an endorsement or review in connection with its products or services, there are guidelines to follow set forth by the FTC (the Guides Concerning the Use of Endorsements and Testimonials in Advertising). The FTC Endorsement Guides emphasize the basic principle of truth in advertising: that endorsements must be honest and not misleading. The Guides further state that the endorsement must reflect the true opinion of the reviewer, who must actually have experience with the product or service, and that a material connection between the reviewer and the company needs to be disclosed, if that fact would matter to the purchaser. While the Guides are not regulations, and have no civil penalties for a violation, the FTC can investigate whether the practices are deceptive or unfair under the FTC Act if an advertiser does not follow the Guides.

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The Prior Registration Puzzle: Overcoming Registration Refusals Based on Intervening Third-Party Marks

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Many trademark attorneys practicing for an appreciable length of time have encountered the following scenario:

  1. Your client owns a registration for a mark (the “Anchor Registration”);
  2. Your client refrained from opposing registration of a similar third-party mark (the “Intervening Mark”) because it saw a low likelihood of confusion;
  3. Your client’s subsequently filed applications in the Trademark Office for the mark depicted in the Anchor Registration (or a virtually identical mark) were refused registration based on the Intervening Mark; and
  4. Attempts to obtain consent from, or coexist with, the Intervening Mark owner were unsuccessful for some reason.

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Thinking About Engaging an Influencer for Your Next Promotion? Plan Ahead!

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Those running promotions such as sweepstakes or contests on social media may seek to engage influencers, or individuals with significant social media followings, to enhance their promotions’ visibility and boost engagement. But before doing so, there are a variety of rules and regulations to consider and evaluate, including Federal Trade Commission (“FTC”) rules relating to misleading, deceptive, and unfair advertising, state-specific rules relating to promotions, and social-media-platform-specific rules, among others. This post gives a high-level overview of issues to consider before engaging influencers to boost your next contest or promotion.

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Trademark Strategy as a Tool to Combat Cybercrime

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It is an all-too-common occurrence: The phone rings and a panicked client on the other end of the line has been impacted by an online fraud. Fraud on the internet is carried out daily, with new and inventive methods of attack being put into practice to mask and conceal the crime at hand until it is “too late.” While we have all learned to identify and avoid certain suspicious behaviors, bad actors continue to develop new and inventive ways to procure sensitive data, receive payments under fraudulent pretexts and otherwise perpetrate crimes with the benefit of the relative anonymity and obscurity that is afforded by the internet.

According to the 2021 report from the FBI’s Internet Crime Complaint Center (IC3), the IC3 alone received more than 2.75 million complaints and reported losses of $18.7 billion from 2017 to 2021. See Federal Bureau of Investigation, Internet Crime Report 2021. Broader studies seeking to understand the global impact of such activities suggest total losses actually range in the hundreds of billions per year, depending on the study. Regardless of the source, one thing is clear: The cost of frauds resulting from spoofed websites designed to collect sensitive consumer data, email account compromise designed to extract payments from unwitting customers by sending apparently legitimate requests for invoice payment, and even more involved frauds are impacting clients by costing them real dollars, damaging their reputation and customer relationships, and otherwise putting a strain on their ability to conduct business.

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College T-shirts and Trademarks – Ornamental or Protectable?

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As college freshmen head to campus for the start of classes, there is one vital campus bookstore purchase before classes begin: a T-shirt bearing the college’s logo. This purchase is not only a rite of passage for freshmen; it also touches on an important concept in trademark law: ornamental use of trademarks on T-shirts.

What is ornamental use?

Under sections 1, 2, and 45 of the Trademark Act, the United States Patent and Trademark Office (“PTO”) can refuse registration of a trademark on the ground that the applied-for matter is decorative and therefore does not function as a mark because it is merely ornamentation. In re Peace Love World Live, LLC, 127 U.S.P.Q.2d 1400 (TTAB 2018). Ornamental matter can include words, designs, slogans, or trade dress.

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Branding Success: How to Select a Strong Trademark

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We all know a picture is worth a thousand words, but did you know a trademark can be worth BILLIONS of dollars? In fact, some of the top trademarks in the world are worth hundreds of billions. What’s the secret to this branding success? A strong trademark!

A trademark serves many purposes. Two of the more important purposes are: (1) identifying the source of a company’s or individual’s goods or services; and (2) indicating to consumers the quality or type of goods or services identified by the mark. Consumers rely on trademarks to make informed decisions about the goods and services they purchase or use.

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Four Costly Trademark Horror Stories and How to Avoid Them

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Since Halloween candy is already in stores (why…?), we‘re here to tell you some trademark tales that are sure to make you shiver – if you care about your pocketbook, that is.  We’ve encountered these spooky situations – with worldwide implications — when we’ve been brought in to clean up.  (Who you gonna call? Faegre Drinker!)

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Expungement and Reexamination: A Mid-Year Check-In

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This time last year, we introduced a series of blog posts in which we provided an overview of the new ex parte examination and expungement proceedings introduced by the Trademark Modernization Act (“TMA”) and pondered a question sure to be on the minds of many a practitioner – will these proceedings truly be a faster and more efficient vehicle for removing improper trademark registrations from the registrar?  While the answer to this question is yet to be seen, the first six months of proceedings have provided some insights to consider when assessing whether an expungement or reexamination proceeding is the right option for you.

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The Ohio State University’s Federal Trademark Registration for “THE” – Can They Do That?

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Graduates of The Ohio State University (“Ohio State”) are familiar with fans and supporters (and sometimes, Michigan fans) placing an emphasis on the “THE” when saying the school’s name. But the United States Patent and Trademark Office’s (“USPTO”) recent decision1 to grant federal trademark registration No. 6,763,118 to Ohio State for the most popular word in the English language2 has garnered much mainstream media attention and confusion. This blog post provides a brief overview of the background and potential implications of this registration.

How did Ohio State register such a common word?

Ohio State first applied to register the word THE in 2019 in connection with Clothing, namely, t-shirts, baseball caps and hats3. The application was initially refused4 by the USPTO because: (1) a third-party clothing company had already filed an application for the word THE beforehand; and (2) because the mark was “merely ornamental” (in other words, the USPTO believed that THE did not function to indicate the source of Ohio State’s clothing goods). Ohio State eventually overcame those issues by submitting evidence and images to demonstrate that THE had source-indicating function, and by entering into a consent agreement with the third-party clothing company5. With these issues both resolved, and no additional refusals or challenges being raised, the USPTO granted a federal registration to Ohio State for THE on June 21, 2022, to many commentators’ surprise.

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