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CROCS, INC. v. EFFERVESCENT, INC. Before Reyna, Cunningham and Albright. Appeal from the United States District Court for the District of Colorado. Summary: A claim that an unpatented product feature is “patented,” “proprietary,” or “exclusive” may violate Section 43(a)(1)(B) of the Lanham Act.

The Federal Trade Commission is cracking down on Florida-based EXOTOUSA LLC d/b/a Old Southern Brass and its owner (collectively, “OSB”) for deceptive claims regarding the origin of its products and its alleged financial donations to military causes. OSB advertised that its products, including glassware, mugs, pens, and other novelty items, were made entirely in the U.S. by displaying statements on its product listings such as “100% American made,” “made right here in the United States of America,” and “100% USA made.” OSB also purported to be veteran-operated and pledged to donate 10% of its sales to military charities. The FTC’s order, finalized in January 2024, found those claims inaccurate, halted the deceptive practices, and imposed a monetary judgment against OSB.

Social media and influencer marketing is now critical for business promotion. However, organizations and influencers that misrepresent, fail to disclose, or include inadequate disclosures regarding their sponsorship or connection to social media content risk attention from the FTC and civil penalties of up to $50,120 per violation. Following revision of its Endorsement Guides in June, the FTC has continued to focus on influencer marketing, including recently in the area of health and safety.

It’s hard to be a fashion innovator. It’s far easier to be an imitator. Success requires enormous investment in creating and marketing new designs, with no certainty that the designs will succeed. The imitator merely needs to watch the market, pick a successful product, ship a sample to an overseas manufacturer, and sell the knockoffs once they arrive in port.

On November 16, 2021, Miramax, LLC (“Miramax”) brought claims of breach of contract, copyright infringement, trademark infringement, and unfair competition against director Quentin Tarantino. A copy of the complaint can be found here. Miramax alleges that Tarantino planned to auction off Pulp Fiction Non-Fungible Tokens (“NFT”) comprised of “seven uncut Pulp Fiction Scenes” which include “scans of some pages of the Pulp Fiction script.” For example, the website for the NFT sales states that a digital version of the film’s iconic “Royale with Cheese” scene will also be up for auction. These Pulp Fiction NFTs allegedly hold “previously unknown secrets of [] specific iconic scene[s]” from the movie. The recent explosive demand for NFTs – tokens using distributed ledger technologies (e.g., Ethereum) used to represent ownership of unique items- has caused artists, creators and intellectual property holders to consider monetizing their digital options.

The TTAB has affirmed a refusal to register the trade dress configuration mark (see below) of the popular Timberland boot, a wardrobe staple in hip-hop culture (see The World is Yours by Nas), stating the configuration failed to attain acquired distinctiveness under Section 2(f) of the Trademark Act. In re TBL Licensing LLC, Serial No. 86634819 (TTAB April 2, 2021). Although product designs may not be inherently distinctive, a product design that provides no real utilitarian advantages to the user, but is one of many equally feasible, efficient and competitive designs, may be registrable upon a showing of acquired distinctiveness pursuant to Section 2(f) of the Trademark Act.” Id. at 6.

In April 2021, big-box retailer Walmart Apollo, LLC ("Walmart") filed a trademark opposition against Yeezy LLC ("Yeezy") U.S. Trademark Application Serial No. 88/746444 for its sun rays design mark, shown below (“Yeezy’s Mark”). Yeezy was founded and is owned by Kanye West, who Walmart describes as a “recording artist, record producer, fashion designer, and former candidate for President of the United States.”

International sportswear company Nike filed a lawsuit against a Los Angeles-based manufacturer alleged to have produced thousands of inauthentic Nike® Dunk®-inspired sneakers.

On November 30, 2020, New York Governor Andrew Cuomo signed into law New York Senate Bill S5959D, an amendment to New York's right of publicity law to provide the 40 year post-mortem right of estates of deceased celebrities and performers to protect their likenesses and rights of publicity. When the new law goes into effect May 31, 2021, New York will join California, Tennessee, and 21 other states in recognizing a post-mortem right of publicity.

On October 27, 2020, the District Court in the Western District of Texas issued its Final Judgment in L'Oreal USA Creative, Inc. v. Drunk Elephant, LLC, 1:18-cv-00982 (W.D.Tex.), which approved the Joint Stipulation of Dismissal in view of the settlement between L'Oreal USA Creative Inc. (“L'Oreal”) and Drunk Elephant, LLC ("Drunk Elephant") thereby officially ending the two-year legal battle between the parties.

When they launched "Call Her Daddy" in 2018, Sofia Franklyn and Alexandra Cooper were relatively unknown. They were two New York City friends candidly dishing about dating and sex without any euphemisms on the internet. Barstool Sports saw promise in their content, and signed the two to a three year contract. Now, each has a million Instagram followers (plus or minus) and together they have built a strong brand and a loyal audience by unabashedly offering their commentary and advice on modern relationships. Podcast listeners, self-identified as #DaddyGang, affectionately refer to Franklyn and Cooper as the "Founding Fathers." To Barstool Sports, who signed Franklyn and Cooper to deliver their self-launched podcast on the Barstool platform, the duo were simply employees.

The U.S. Court of Appeals in the Second Circuit found in favor of Costco in the latest chapter of an over seven-year legal battle between Tiffany and Co. (“Tiffany’s”) and Costco Wholesale Corporation (“Costco”). A three judge panel overturned the $21 million award granted to Tiffany’s, after a summary judgment decision in Tiffany’s favor in the U.S. District Court for the Southern District of New York (“SDNY”). In a unanimous decision, the court concluded that the SDNY improperly granted Tiffany’s motion for summary judgment, which prevented a jury from deciding key issues of fact. Thus, the SDNY decision was vacated and the case remanded for trial.

On June 19, 2020, Kim Kardashian West’s ("Kardashian West") company KKW Beauty, LLC ("KKW") was sued in California Superior Court by its business partners Seed Beauty ("Seed") alleging trade secret infringement. According to the complaint, the action was brought after KKW engaged in business discussions with Seed's competitor, to "prevent irreparable harm … arising from the imminent and material threat of KKW’s misappropriation of highly sensitive and confidential trade secret information … to one of Seed’s largest competitors, Coty." Seed Beauty, LLC and MM Cosmetics, LLC v. KKW Beauty, LLC, 20VECV00684 (Cal.Sup.)(June 2020). The complaint can be accessed here.

On May 12, 2020, the United States Patent and Trademark Office issued over 700 new design patents. Fashion-related designs figured prominently among the new patent grants including accessories like eyeglasses (see U.S. Design Patent Nos. D884,062-D884,067), jewelry, watches, and gemstones (D883,835-D883,852), or shoe-related designs (D883,617-D883,650). There were also design patent grants for “Utility glove” (D883,610), “Brassiere” (D883,611), “Garment” (D883,612), “Swaddle sack” (D883,613), “Bodysuit” (D883,614), “Shirred relaxed fit dress” (D883,615), and “Short kaftan with hardware” (D883,616).

With social media popularity comes more followers. With more followers comes opportunities to market products online. But as the wellness-company Teami discovered, with online marketing comes increased FTC scrutiny.

About 40 years ago, marketing strategists Al Ries and Jack Trout offered the world a way to think about making a brand memorable. The best way to be remembered is to be first into your prospect’s mind representing a clear perception. For many products, the brand name has become synonymous with their function. It’s no accident they were also first. People love what is new. One of the “new” trends is based on the current pandemic – coronavirus/COVID-19. However, not all words and phrases can function as a trademark.

On April 10, personal protective equipment ("PPE") manufacturer 3M filed suit against Performance Supply LLC for trademark infringement, deceptive practices, and false advertising. In its complaint, 3M alleges that Performance Supply offered to sell several million N-95 respirator masks to New York's Office of Citywide Procurement in March. An exhibit filed with the complaint shows a price quote offered to the city, with Performance Supply quoting seven million masks at between $6.05 to $6.35 per mask. In contrast, 3M's suggested retail price for the respirators is between $1.02 and $1.31 per mask. Beyond mere price gouging, Performance Supply is not an authorized distributor of 3M masks and is not affiliated with 3M in any way. "To dupe city officials into thinking Performance Supply was an authorized distributor, the lawsuit says, the company used the 3M trademark throughout the price quote document and technical specification sheets."

In October 2019, professional photographer Michele Eve Sandberg filed a complaint against musical trio Jonas Brothers (both as an entity and as individuals) for unauthorized use of photos Sandberg snapped of the band during their “Happiness Begins” tour. Sandberg registered her photos in the U.S. Copyright Office. The Jonas Brothers used Sandberg’s photos on their tour marketing websites and social media platforms, but did not obtain a license to use them. Sandberg alleges copyright infringement in her complaint, claiming the Jonas Brothers copied her work without permission and profited from it. She seeks both monetary damages and an injunction to stop the use of her photographs without her consent.