Repost from E-Commerce and Privacy Alert

By Scott W. Pink

On March 12, 2013, the Federal Trade Commission issued its long-awaited update to its 2000 guidance on disclosures in online marketing and advertising.

The guidance, entitled .com Disclosures: How to Make Effective Disclosures in Digital Advertising, not only reaffirms many of the FTC’s longstanding principles for effective online disclosures, but also provides guidance as to how those principles will be applied to new technologies that have emerged since 2000, such as mobile phones and tablets with more limited space, banner ads and multimedia messaging, and social media platforms such as Facebook and Twitter.

The FTC has broad powers under Section 5 of the FTC Act to protect consumers from “unfair and deceptive acts or practices.”i Under the FTC Act, the FTC has long required effective disclosures for claims that would otherwise be deceptive or misleading without them. .com Disclosures is designed to help businesses comply with the FTC Act by providing examples and direction on how to avoid unfair and deceptive practices through appropriate disclosures in their online and mobile marketing.


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Over the past two weeks, the Trademark, Copyright, and Media Practice Group in Washington, D.C. hosted Afef Mars, a licensed Tunisian attorney, who came to the United States to gain a better understanding of U.S. law with particular focus on the areas of trademarks and its role in franchising.  We took advantage of the opportunity to sit down with Afef and talk to her more about her experience and views on the value of U.S. law. 

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Remarks Blog: What motivated you to learn more about the law of other countries?

Afef Mars: It is important to work to prove our skills as lawyers in a global setting.  Through scientific and technological advances in recent years, the world is growing ever smaller such that travel in the virtual world takes place within seconds.  The practice of law has always intrigued me. Ever since I was a young girl, I dreamed of being a lawyer.  Now that I am practicing, I want to continually strive to develop creative solutions for my clients.  Sometimes, in Tunisia, the body of law that exists does not cover the issue one must address so it can be necessary to understand how other countries are handling similar scenarios.


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Last night, we attended a DC Bar fashion law panel discussion, “For the Love of Fashion: Protect Yourself,” at Baker Hostetler in Washington DC. It was a very informative and comprehensive discussion from in-house and outside counsel, including DLA Piper’s Lisa Norton, who is Of Counsel in the Patent Prosecution group, on trademark, copyright, and patent protection as well as current hot-button developments in fashion law and anti-counterfeiting.


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By Erin Wright Lothson

The famous Kardashian sisters are making news again, but this time not for their well-known reality television show Keeping Up With the Kardashians. Kim, Kourtney and Khloe Kardashian launched a line of personal care and makeup products in 2012 under the mark KHROMA, and their beauty care products are currently sold at nationwide retaliers including CVS, Ulta, Sears and Kmart. However, the Kardashian sisters are being sued in federal court for trademark infringement for use of the mark KHROMA.


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By Meghan Paulk Ingle

A Texas-registered trademark can protect your company’s name, logo or slogan from use by another business in Texas. Texas trademark registration generally offers a simpler, faster and less expensive alternative to federal trademark registration for businesses that operate solely within Texas and do not plan to expand outside of the state.

However, the revised Texas Trademark Act, which took effect on September 1, 2012, may undercut some of these advantages by bringing Texas trademark law more closely in line with federal trademark law.


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By Erin Wright Lothson

The Digital Millennium Copyright Act (“DMCA”) was passed in 1998 and makes it illegal to circumvent digital rights management protections, including software. Given the rapid pace at which technology changes, Congress also granted the Librarian of Congress the power to issue exemptions to the DMCA every three years. The latest round of exemptions were issued on October 28, 2012.


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Media outlets have been buzzing over the purported denial of Beyonce and Jay-Z’s BLUE IVY CARTER trademark.  On October 16, 2012, the United States Patent and Trademark Office (“USPTO”) granted a federal registration to Veronica Morales, a Boston-based wedding planner, for the trademark BLUE IVY (U.S. Registration No. 4224833) covering event planning services. Morales, who claims use of the BLUE IVY trademark since 2009, obtained her federal registration before Beyonce and Jay-Z despite filing her federal application one month later.  A number of reporters incorrectly state that Morales’ BLUE IVY registration has derailed any opportunity for Beyonce and Jay-Z to secure rights to, let alone a federal registration for, their BLUE IVY CARTER trademark. Of course, such an assertion demonstrates a clear misunderstanding of the highly specialized and nuanced area of trademark law.


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By James Stewart

Madonna is the center of attention again regarding alleged misappropriation (remember the “Express Yourself” debate?).  The “Material Girl” is once again en vogue on the copyright docket in the Ninth Circuit.  According to IPLaw360, record label VMG Saloul LLC has sued Madonna, her record label, and a co-composer (collectively, “Madonna”) with whom she worked to compose and produce the smash-hit “Vogue” for copyright infringement.

VMG alleges that Madonna covertly incorporated pieces of their late-seventies disco track “Love Break” into the infamous 1990 hit single “Vogue”.  In an attempt to bypass the Copyright Act’s statute of limitations, VMG argues that it was unable to detect such copying until new technology was developed in 2011.

Madonna quickly denied that any copying took place.  However, most interesting about the Material Girl’s motion is her observation that VMG’s “new technology” argument effectively wipes out any chances of success in this infringement suit.


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By James Stewart

While New York has Fashion Week, September has proved to be Fashion Month in the Senate. On September 10, 2012, Senator Charles Schumer (D-NY) introduced S.3523 the “Innovative Design Protection Act of 2012” (“the Bill”).  The Bill, aimed at extending intellectual property protection to fashion designs, was approved by the Senate Judiciary Committee on September 20, 2012.

WHAT DOES THIS MEAN FOR FASHION DESIGNERS?  

It is no secret that intellectual property protection for fashion designs has been a heavily debated issue in the legislature since 2006.  While one would think the fashion community would be ecstatic about protection for original designs and creativity, in an industry with diverse stake holders, many are concerned about the potential implications of this Bill and its effects on fashion designers’ rights.

Although exceptional limits exist in each of the methods fashion designers may use to try to protect their designs, fashion designers today rely primarily on trademark, patent, and anti-counterfeiting laws as the main sources of protection for their intellectual property.  Additionally, fashion designers are afforded very limited protection under the current iteration of the Copyright Act.  Trademarks are used to protect the integrity of the designers’ brands.  Patents are useful for some fashion designs, although due to the lengthy application and registration process, the need for a patent is often obsolete by season’s end.

The proposed pieces of legislation to-date have tried to provide protection for fashion design under the Copyright Act, calling for a three year term of protection for original articles of apparel.  Under these proposed bills, the standard for copyright infringement would be articles which are “substantially similar” containing only minor or trivial differences. 

This standard has caused concerned across a wide spectrum of fashion designers, from innovative designers to the more conservative designers, for its practical challenges in enforcement.  Fashion is a collective effort of designers who receive inspiration from all aspects of their daily lives, generations past, and other designers.  An essential element in fashion is recycling and renovating.  Therefore, designers are not only concerned about protecting their own designs, but also the risks associated with their own designs in the future.  


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