FTC Announces First COPPA Action Involving Connected Toys

A Hong Kong-based electronic toy manufacturer and its U.S. subsidiary agreed to pay the Federal Trade Commission (FTC) $650,000 to settle allegations that they violated the Children’s Online Privacy Protection Act (COPPA) by collecting personal information from children without providing appropriate notice and consent, and by failing to take reasonable steps to secure the data that they collected. Notably, this is the FTC’s first COPPA case involving connected toys, but it may not be its last, as connected toys continue to play a more prominent role in children’s lives.

Background

The companies, VTech Electronics Limited, a Hong Kong corporation, and Illinois-based VTech Electronics North America, LLC (VTech), develop products and services for children, including electronic learning products (ELPs) and online games available through their ELPs or the Internet. The companies also develop and operate the Learning Lodge Navigator online service, which functions similarly to an app store and allows customers to download the companies’ child-directed apps, games, e-books and other online content. By November 2015, the FTC asserted that approximately 2.25 million parents in the United States had registered and created accounts with Learning Lodge for nearly 3 million children. Continue Reading

Tomorrow Is Yesterday: Today’s Cases Boldly Going Where Our Blogs Have Gone Before

Sometimes blogging topics are hard to come by.  It is often difficult because, as a sage once noted in discussing the search for The Ultimate Computer, one wants to do one’s best, but something like creativity “doesn’t work on an assembly line basis. … You can’t simply say, today I will be brilliant,” insightful, informative or even mildly amusing.  But other times topics materialize right before your eyes, as if dropped on your desk by fate or chance, and then they seemingly write themselves, without either assembly lines or much hard work.

We report today on Dr. Seuss Enterprises LP v. Comicmix LLC, et al., a case in the United States District Court for the Southern District of California, raising issues of trademark and copyright law, and that Court’s December 7, 2017 decision denying defendants’ motion to dismiss.  That motion sought to dismiss claims that defendants’ mashup of Dr. Seuss and Star Trek in a book to be entitled Oh! The Places That You’ll Boldly Go infringed plaintiff’s trademarks and copyrights.  Given that we have written previously about the intellectual property law issues arising in matters involving the Star Trek franchise and the Seuss canon, a chance to write about a case that combines them seems pre-ordained, and for once the struggle to settle upon a topic was not so unsettling.  And, in our ongoing mission to relate some of these US law issues to a wider audience, we will revisit some previously-discussed UK alternatives as well as looking at new arguments that fine support in the writings of a Canadian academic. Continue Reading

Greek Supreme Court contests the validity of Philips’ EFM+ (DVD) Patent

Summary

In its decision no 1589/2017 the Greek Supreme Court upheld the appeal brought by the Greek company “DPH” against the Dutch company “P”. The Supreme Court held that the Court of Appeals’ decision, which had upheld definitely the lawsuit of “P” against “DPH” for breach of “P”’s essential patents, was wrong in finding they were sufficient reasons for granting patent protection to “P”’s disputed patents under the applicable rule of Greek law setting the conditions for granting patent protection. Continue Reading

Can Similar Trademarks Coexist Peacefully?

Suppose that you want to register a trademark that identifies a source of goods or services for your business.  You file a federal trademark application with the U.S. Patent and Trademark Office.  Subsequently, you receive an Office Action from the U.S. Patent and Trademark Office that initially refuses registration of your mark based on a likelihood of confusion with a similar trademark?  Can you overcome the refusal to obtain a registration from the U.S. Patent and Trademark Office?  The answer is often YES!

Section 2(d) of the Trademark Act (15 U.S.C. § 1052) states in part:

No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it—

(d) Consists of or comprises a mark which so resembles a mark registered in the Patent and Trademark Office, or a mark or trade name previously used in the United States by another and not abandoned, as to be likely, when used on or in connection with the goods of the applicant, to cause confusion, or to cause mistake, or to deceive. . . .

Continue Reading

TV FORMAT PROTECTION – MORE DETAILS NEEDED

Introduction

From Bullseye to Mastermind and from The Chase to Eggheads, it is undeniable that the public love a TV game show.  Who (in the UK) doesn’t remember Judith Keppel sensationally becoming the first winner of Who Wants to be a Millionaire?  A total of 14.9 million UK viewers (that is about a quarter of the UK population) settled in to see Chris Tarrant hand over the million pound prize cheque for the first time.

With such shows producing hours of entertainment and numerous commercial opportunities, TV formats can be very valuable.  It is therefore understandable that creators and production companies are particularly protective about their formats and look to protect their rights like any other form of intellectual property, despite copyright protection being historically difficult to obtain.  The English High Court, however, has recently produced some much needed clarification on the way TV formats should be recorded or expressed in order to stand a chance of being protected by copyright as a dramatic work[1]. Continue Reading

Battling the Real “Fake News”: FTC Reaches Multi-Million Dollar Settlement with Internet Marketers for False Celebrity Endorsements

Unfortunately, the unauthorized use of a celebrity’s name and image has become a deceptive advertising practice frequently used by dishonest online marketers. This type of ad typically claims (falsely) that a public figure has used or endorsed what is billed as the latest miracle weight loss supplement or wrinkle-reducing cosmetic. Going after these bad actors to protect one’s right of publicity and intellectual property rights can be a challenge, as it can be difficult to identify the responsible parties, and even if they can be found, they may be outside of the reach of U.S. laws or a small operation that appears not worth pursuing. A recent action by the Federal Trade Commission (FTC), however, serves as a reminder that those who peddle in false online endorsements may be part of a larger network that can be identified and stopped.

In November, the FTC announced that it had reached an agreement to settle charges against a network of internet marketers who for years had allegedly used false and deceptive advertising and billing practices — including the use of fake magazine and news articles and phony celebrity endorsements — to sell its alleged weight loss, muscle-building and wrinkle-reducing products to consumers. The settlement is notable not only for the substantial financial award achieved by the FTC, but also for the breadth of the marketing network involved. Public figures seeking to combat the unauthorized use of their names or images in internet advertisements should take comfort from the FTC’s settlement that it is possible to identify the parties responsible for such misconduct and put a stop to their deceptive schemes. Continue Reading

Towards an effective legal framework for the protection of intellectual property rights from online infringements in Greece

The protection of copyright from infringements taking place via the Internet has been in Greece until today extremely inefficient and time-consuming.

Legal experts and copyright holders hope that this situation will alter soon. On July 2017, a new Copyright Law 4481/2017 was adopted amending the existing Copyright Law 2121/1993. The new Law provides dispositions aiming to regulate for the first time in Greece this kind of situations. To be more specific, a new article to Law 2121/1993 (article 66E) is added, which aims to enhance the protection of copyright and related rights on the Internet via a “notice and takedown procedure”.

The persons entitled to the protection provided by Law are right holders whose rights are infringed via the Internet as well as any collective management organization entrusted with the management of copyright and neighboring rights. The above mentioned persons can file an application to a special three-member Committee, set up specifically for this purpose, reporting the alleged infringement. Please note that the Committee has not been established yet.

Before the right holder being able to demand before the Committee to take action for the cessation of the infringement, it is indispensable that the right holder have followed an equivalent procedure (if any) provided by the internet access provider and that this procedure have been unsuccessful. Continue Reading

Korean Patent Court Finds: Use of Outback motel mark unfairly competes with mark for restaurant services

In a suit alleging trademark infringement and unfair competition, the Korean Patent Court concluded that the use of the mark “” in connection with “unmanned lodging services” used for so-called love motels with an image of a naked woman, did not infringe Outback Steakhouse’s trademark.  But it did constitute unfair competition because that use harmed the good image and fame of the well-known mark “” owned by Outback Steakhouse (Case No. 2016 Na 1691, decided on June 29, 2017).

Facts

Outback Steakhouse has been doing business in over 20 countries (including South Korea) under the names “OUTBACK”, “아웃백” (“OUTBACK” in Korean) and “” since its founding in 1988 in the U.S.  Recently it discovered that the defendants were operating unmanned lodging facilities under the names “아웃백” (“OUTBACK” in Korean), “OUTBACK”, “”, or “아웃백 무인텔” (“OUTBACK UNMANNED LODGING TEL” in Korean).  Outback Steakhouse filed suit against the hotel operator, based on trademark infringement and under the Unfair Competition Prevention Act. Continue Reading

“EACH DAY HAS A COLOR, A SMELL…”: Searching For New Trademark Worlds

The search for spices, and the gold that one expected to find nearby (or earn through sale of the spices), in many ways drove the Age of Exploration.  And spices still hold a special place in our economy and in our imagination; in fact, we believe that spices “all hold magic.” Part of that magic is that spices give “[e]ach day … a color, a smell,” as we are told by The Mistress of Spices herself.  Well, color and smell (or the more delicate scent) are now adding spice to trademark law around the world as businesses explore new ways to differentiate their goods and services from those of their competitors.  Getting trademark protection for color and scent may depend where you seek such protections, as the rules vary from country to country.

Spicing Up Trademarks: Before charting the different approaches found across jurisdictions, some basics will help one understand the course of such considerations.  At its most basic level, according to World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (or TRIPS, which this blog has addressed before), trademarks encompass “any sign…capable of distinguishing the goods or services of one undertaking from those of other undertakings” (TRIPS, article 15(1)).  Color can be such a “sign” according to INTA (or the International Trademark Association) (as quoted in AdWeek), but only where the trademark owner can “’show that the consumer, upon seeing the color used in connection with the goods or services, views the color not as merely ornamental but, rather, as a means of indicating the origin of those goods or services.’” Many jurisdictions also recognize that smell/scent can be such a “sign” because “scents do have the ability to convey information through our olfactory system,” but others do not do so because, as INTA notes, “[s]cent marks are more problematic than visual trademarks as they are defined subjectively and are therefore open to interpretation. The complications that arise from human perceptions of odors lead to the argument that subjective views are inadequate when determining whether the scent mark functions as a trademark.” Indeed, “temperature, humidity levels, and wind conditions can greatly affect both potency of a scent and the scent itself,” which one commentator noted is problematic not only for registration and enforcement, but for recognition itself (after himself previewing his legal analysis with a fairly biologically and anatomically detailed definition and explanation of the term “olfactory”).  Trademark offices, such as the USPTO, nevertheless do have procedures for submitting scent (and event taste) samples. Continue Reading

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