Clients often ask whether—and, if so, when—they must use the ® and ™ symbols, or other forms of attribution, when using another company’s trademarks. This question arises in a variety of settings. For example, a company may want to use another’s trademark in order to make a comparative advertising claim, to state that its product is compatible with another company’s product, or to identify a business relationship with another company. The rules for the attribution of another’s trademarks are not cut and dry. Rather, it is a circumstance-driven decision, based on the specific nature of the use in question. While appending the ® or ™ symbol to another’s mark and including a statement identifying the mark owner is often a good practice, a recent decision by a federal district court suggests that, in some cases, this may not be necessary.
Wheelchair ramps and accessible parking spaces soon may not be enough for retailers to comply with the Americans with Disabilities Act (ADA). As companies continue to expand their online presence, the number of suits brought against retailers for non-compliance with the ADA has grown, especially litigation related to the websites of large retail chains, many of whose websites allegedly do not allow hearing- or sight-impaired individuals easy access to the services provided by retail websites. Trade associations have filed similar claims as they continue to petition for non-discriminatory treatment for those with disabilities, with the ultimate goal of retail websites that cater to the needs of the disabled by providing features such as closed captioning for the deaf or screen reader-compatible content for the blind.
Washington, DC — In a closely watched data collection case, Arent Fox LLP secured a victory for Lacoste when the California Supreme Court declined to clarify whether retailers in the state can ask customers for their personal information. On August 26, California’s high court responded to a certification request from the US Court of Appeals for the Ninth Circuit by agreeing with arguments put forward by Arent Fox. The court pointed to a previous decision where it was found that a company did not violate the Song-Beverly Credit Card Act because the law does not prevent retailers from asking for personal information after a transaction has concluded.
On Tuesday September 1, 2015, California Governor Jerry Brown signed a bill that will enable products to be labeled and marketed with an unqualified “Made in USA” statement even if not entirely made in the United States – a major departure from California’s current more stringent standard. The bill, to be effective January 1, 2016, will permit unqualified Made in USA labeling of products with foreign content not exceeding 5% of the final wholesale value, or in cases where the manufacturer cannot domestically produce or source the needed parts or components obtained outside of the U.S., the foreign content cannot exceed 10% of the final wholesale value. Albeit closer to the Federal Trade Commission’s (FTC) “Made in USA” standard, the California bill does not directly align the standards.
In a closely-watched fashion design case, the Sixth Circuit ruled last week that decorative designs on cheerleading uniforms are eligible for copyright protection. The US Copyright Act does not provide protection for functional aspects of clothing. However, it is possible to obtain copyright protection for purely-decorative features of clothing that exist independently of an article’s utilitarian aspects, which is the heart of the issue the Sixth Circuit was grappling with. The 2-1 opinion in Varsity Brands et al. v. Star Athletica overturned a district court ruling which found that the decorative components of the uniforms were not “conceptually separable” from the utilitarian apparel such that copyright protection would apply.
Jawbone and Fitbit, both billion-dollar leaders in the “wearable” technology category of fitness bands, are warming up for what may become a test of legal endurance. Jawbone recently filed three lawsuits in three different courts, accusing Fitbit of infringing patents, poaching employees, and stealing trade secrets. Although Fitbit has not yet hit back with its own suit, the two rivals seem poised to start a lengthy legal battle.
The first complaint, filed in California state court in May, accuses Fitbit of trying to “decimate” Jawbone by luring its employees and taking its trade secrets. The second complaint, filed in California federal court shortly before Fitbit’s initial public offering in June, accuses Fitbit of infringing three patents covering fitness software technologies. And the third complaint, filed in the International Trade Commission in July, accuses Fitbit of infringing six patents covering fitness software and hardware technologies.
On July 22, 2015, the Consumer Product Safety Commission (CPSC) and the Swedish consumer products company, IKEA, issued a joint press release to announce a “repair program,” addressing a furniture tip-over safety hazard posed by 27 million chests and dressers sold by the company. IKEA’s repair program consists of providing consumers with free wall anchoring repair kits that can be used to fasten the chests and dressers to the wall to help prevent future tip-over incidents involving these products. However, an interesting aspect of the CPSC/IKEA announcement is that the initiative was not characterized as a “recall” as is CPSC’s common practice when product repairs are needed to address safety issues related to normal product use. The CPSC/IKEA press release can be found here.
Nike Inc. (Nike) recently agreed to pay more than $2.4 million to settle a class action lawsuit related to the Nike FuelBand activity tracker. The lawsuit, Levin v. Nike, was filed May 17, 2013, in California Superior Court in Los Angeles County. The Plaintiffs alleged violations of California unfair competition and false advertising laws, as well as breach of warranty.
The FuelBand Advertising Claims
The Plaintiffs’ allegations center around claims made in connection with the Nike FuelBand, which is a wristband activity tracker. Specifically, advertising for the FuelBand suggests that the product is capable of tracking every calorie burned and step taken by a FuelBand user. The complaint singles out the following claims:
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