Insights

In 2023 and 2024, several U.S. states enacted extensive “Right to Repair” laws, reflecting a growing legislative focus on ensuring consumers have access to the parts and resources needed to repair their own products without relying on the product’s original manufacturer. Most recently, California, Colorado, Minnesota, New York, Massachusetts, and Oregon implemented comprehensive regulations aimed at providing consumers direct access to tools, parts, and information for the repair of various electronic devices and equipment, including digital products and agricultural machinery. As the “Right to Repair” movement continues to gain significant traction across the United States, it is critical that manufacturers understand these laws and how these laws will impact their individual businesses.

The U.S. Patent and Trademark Office (USPTO) recently issued the one millionth U.S. Design Patent on September 26, 2023. U.S. Design Patent 1,000,000 is directed toward the ornamental design of a dispensing comb and was issued to Agustina Huckaby, an inventor and licensed cosmetologist from Fort Worth, Texas. This significant milestone, 181 years after the first design patent was issued in 1841, comes during a time of increased interest in design patents. The USPTO reports that in 2022, more than 50,000 design patent applications were filed, and that the USPTO has seen an 20% increase in design applications over the past five years.

In March 2023, the USPTO and its Council for Inclusive Innovation announced the First-Time Filer Expedited Examination Pilot Program.  This new program benefits those individuals or small businesses that are first-time filers for patent rights and qualify as “micro entities.”  Through the program, these micro entities receive an expedited first Office action, which the USPTO hopes will lower time-based barriers for inventors that acted as barriers to commercialization or may have otherwise precluded inventors’ use of the patent system. 

New ways to utilize the internet for fun and leisure have skyrocketed recently. ChatGPT allows people to ask everyday questions and draft novels to their liking thorough AI, and the metaverse is constantly developing new ways to interact with each other in virtual worlds. With these new frontiers in the spotlight, it is important for companies to also consider the current remarkable technology being updated and used by millions of consumers that goes hand in hand with these new mediums. Cloud gaming is a technology that allows users to play video games on remote servers and stream the gameplay to their devices, also called gaming-as-a service. This technology, along with AI and the metaverse, has the potential to revolutionize the media industry by making interactive games and live brand collaborations more accessible and convenient for users.

The Food and Drug Administration (“FDA”) recently issued guidance recommending that the term “milk” extend beyond dairy (cow) milk products to plant-based alternatives. Although not legally binding, the guidance indicates that nondairy milk alternatives can be labeled “milk” and need not be restricted as nondairy “beverages” or “drinks.” These plant-based alternatives should, however, include a statement on their product label describing how they are nutritionally different from milk (e.g., “contains a lower amount of potassium than milk”).

The U.S. Copyright Office (“Copyright Office”) has clarified its position on AI-generated images, concluding that, while such images are not themselves entitled to copyright protection, copyright protection and registration may be available for works of copyrightable authorship that incorporate such AI-generated images and art.

On February 17, 2023, the Illinois Supreme Court ruled 4-3 that violations of the Biometric Information Privacy Act (“BIPA”) (the country’s first biometric privacy legislation) accrue for each incident of capture or dissemination of biometric information, and not only once for each data subject. Cothron v. White Castle Systems found based on the plain language of the statute that violations for collecting or disclosing biometric information occur at every scan or transaction. Cothron v. White Castle Sys., 2023 IL 128004. The court reached this conclusion while admitting the “absurd” implications, including that the ruling could result in damages of $17 billion. Id. at ¶ 40.

#ICYMI—The Federal Trade Commission (“FTC”) extended the public comment period on its solicitation for public comments regarding potential updates and changes to the Green Guides (Guides for the Use of Environmental Marketing Claims) by 60 days.  On December 14, the FTC held an open meeting and voted to notice the public comment period. On December 20, the FTC noticed the public comment period on the Federal Register, which would have originally expired on February 21, 2023. All public comments must now be filed by April 24, 2023.

Is there a legal, cognizable claim for a consumer who was misled by a movie trailer? Perhaps. In June 2022, two Plaintiffs filed a lawsuit against Universal concerning a movie they streamed titled Yesterday which is owned by Universal.  Woulfe et al v. Universal City Studios LLC et al., 22-cv-00459, ECF No. 83 (C.D. Cal. Dec. 20, 2022).  Prior to streaming, the Plaintiffs watched the movie trailer, which featured actress Ana De Armas.  In the complaint, Plaintiffs alleged they were persuaded by the trailer, and De Armas’ role in particular to stream the movie.  However, De Armas’ character was cut from the final version of Yesterday, so she was not featured in the film whatsoever.  The Plaintiffs alleged they would not have rented the movie had they known De Armas would not appear in the movie. The Plaintiffs then sued Universal under a host of consumer protection violations, including a violation of the California Unfair Competition Law, California Consumer Legal Remedies Act, and California False Advertising Law. 

The Federal Trade Commission (“FTC” or “Commission”) recently announced that it has adjusted the maximum civil penalty dollar amounts for violations of 16 provisions that the Commission enforces. The increase is required by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, and is intended to account for inflation. The act directs agencies to implement annual inflation adjustments based on a prescribed formula. Given the uptick in FTC enforcement actions, companies are likely to begin feeling the impact of the increased penalties in the coming year.

 

On November 21, 2022 the U.S. Supreme Court agreed—after passing on the issue once before—to hear Jack Daniel’s (JDPI) challenge to the Ninth Circuit’s ruling in VIP Prods. LLC v. Jack Daniel’s Props, where the Ninth Circuit affirmed without opinion the district court’s grant of summary judgment to VIP and the dismissal of JDPI’s trademark infringement claim,[1] on the grounds that JDPI could not satisfy either prong of the Rogers test. The Rogers test balances free expression under the First Amendment against the trademark protections of the Lanham Act. The Supreme Court granted certiorari on the questions of whether parody uses of another’s mark receive First Amendment protection from liability under the Lanham Act and whether parody is exempt from claims of dilution by tarnishment under 15 U.S.C. § 1125(c)(3)(C). The decision could clarify the balance between trademark and the First Amendment, an issue that has long-confounded practitioners.

On November 17, 2022, the European Court of Justice (ECJ) issued four important decisions (here) relating to parallel imports of branded products within the internal market of the European Union (EU). This is a complex topic at the crossroads of free movement of goods and trademark enforcement in the EU.

The U.S. Supreme Court is poised to clarify the extraterritorial reach of the Lanham Act for the first time in seventy years.  The decision will impact corporations’ ability to seek damages for international trademark infringement, and may resolve a circuit split on the applicability of the Lanham Act on foreign defendants’ foreign conduct.  The Court will review the Tenth Circuit’s decision in Abitron Austria GmbH et al. v. Hetronic International Inc. (“Hetronic”) and the extraterritoriality of the Lanham Act, seemingly the Court’s desired outcome after requesting the United States weigh in on Abitron Austria GmbH’s (“Abitron”) certiorari petition filed in January 2022. 

In June 2021, Penn State filed a lawsuit for trademark infringement against online retailer, Vintage Brand, LLC for selling items containing the school’s trademarks. Vintage Brand countersued claiming, among other things, that three of the university’s marks at issue should be cancelled because they are ornamental and fail to function as trademarks. It is this claim that Penn State sought to dismiss.

Monster has matched the size of its energy drinks with its recent arbitration award—securing a staggering $175 million in a trademark dispute heard by arbitrator Bruce Isaacs. While many contractual conflicts are resolved through arbitration, few trademark infringement cases land in arbitration and even fewer involve such a high monetary award.

On July 7, 2022, the Federal Trade Commission (“FTC” or “Commission”) announced it is acting against grill manufacturer Weber-Stephen Products, LLC, arguing that Weber’s warranties illegally restrict consumers’ right-to-repair. The Weber complaint is the third salvo in the FTC’s recent string of right-to-repair administrative complaints, after issuing two similar complaints against Harley-Davidson Motor Company Group, LLC and MWE Investments, LLC mere weeks prior. The FTC’s recent action thus signals that it will continue prioritizing enforcement of tying rules under the Magnuson Moss Warranty Act (“MMWA”).