The US Federal Trade Commission is clamping down on native advertising and the use of endorsements on social media. This article, first published in Managing IP, outlines a settlement which provides a number of lessons for brand owners.
As advertisers are relying more heavily on social media platforms to create buzz around new products and services, a settlement with the Federal Trade Commission has called cutting edge promotional techniques into question. In 2016, the FTC announced a settlement with department store chain Lord & Taylor for its allegedly deceptive use of native advertising in a multi-pronged online and social media campaign. This article explores how advertisers use social media and native advertising to reach consumers and how the Lord & Taylor settlement can assist advertisers as they consider how to structure social media advertising campaigns so as not to prompt the FTC to “dislike” the campaign – and bring an action.
Read the full article, originally published by Managing Intellectual Property here
Since the first proposals for amendments to the European Commission’s draft copyright directive were leaked earlier this month, we have seen quite some discussion on what the Digital Single Market will bring about. The leaked report was drafted by the European Parliament’s Committee on Legal Affairs. MEP Therese Comodini Cachia takes responsibility over the subject. The paper puts forward an impressive total of 73 proposals for change.
Last week, we cast an eye on a highly controversial aspect of the new copyright directive: the introducing of new neighbouring right for press publishers (see our blog post). Whilst, the Commission is clearly in favour of such right, the Parliament rather prefers a mere assumption of press publishers acting on behalf of the authors when going against unauthorised use of press publications on the Internet. Today, we want to touch upon an equally important subject: Article 13 of the Commission’s draft directive holds a set of new obligations for online service providers.
Pursuant to Article 13 of the draft, online service providers storing and providing the public with access to large amounts of works uploaded by their users shall take measures in order to prevent infringements. Specifically, such platforms shall, in cooperation with rightholders, “take measures to ensure the functioning of agreements concluded with rightholders for the use of their works or other subject-matter or to prevent the availability on their services of works or other subject-matter identified by rightholders through the cooperation with the service providers.” According to the Commission, a possible measure could for instance be the implementation of content recognition technologies. However, the Commission has, as yet, failed to give any indication as to how such an obligation could work together with the liability privilege providers enjoy under the current e-Commerce Directive 2001/31. Continue Reading
Hogan Lovells represented Federation of the Swiss Watch Industry FH (“Federation”) in a successful appeal against a decision of the Hong Kong Registrar of Trade Marks in an opposition involving the “Swiss” certification mark. Importantly, the Court’s decision confirms the public interest in ensuring that certification marks are given the necessary protection in Hong Kong. Courts are often slow to interfere with decisions of an experienced Registrar so the appeal decision is also significant in that it is one of the rare decisions in which the decision of the Registrar of Trade Marks has been set aside.
The key issue raised in the appeal was whether the mark “” (“Opposed Mark“) should be denied registration on the ground that its use in relation to goods in Class 14 for “horological and chronometric instruments” was likely to cause confusion with the Federation’s “SWISS/Swiss” certification mark (“Certification Mark“) in Class 14.
The judge held on appeal that it was clear that the way in which the Opposed Mark was actually being used would confuse the average consumer that the watches were of Swiss origin and of the same quality as watches bearing the Certification Mark would suggest. The judge therefore allowed the Federation’s appeal and rejected registration of the Opposed Mark.
Pursuant to regulations governing the use of the Certification Mark, a watch is considered to be “Swiss” if its movement is made and cased up in Switzerland, and the manufacturer carries out the final inspection in Switzerland. Watches made by the applicant for the Opposed Mark did not comply with these requirements.
Read our full newsflash here
 Swissbernard TM (HCMP 1070/2016) Chow J, 6 March 2017
The European commission published its last draft directive on the modernizing of the European copyright law (COM(2016) 593 final) on 14 September 2016. The draft was part of a larger strategy to bring about a single digital market within the European Union. Back then, the legislative proposal triggered quite some discussion given that its provisions touched upon more than one sensitive topic including text and data mining, a neighbouring right for publishers and new obligations for Internet providers. Most recently, the first statements from the European Parliament were leaked. Specifically, the Committee on Legal Affairs’ report became public as drafted by MEP Therese Comodini Cachia. The report puts forward an impressive total of 73 proposals for change. Considering that the draft directive has only 24 articles in total, this is quite a statement.
The leaked report suggests that the controversial neighbouring right for press publishers will be dropped and replaced with a new Article 11(1), a presumption of representation of authors of literary works contained in press publications. This would give press publishers the legal capacity to sue in their own name when defending the rights of authors in relation to the digital use of articles published in the press. In essence, the press publisher shall not be entitled to any intellectual property rights in those articles but shall have the right to sue infringers on behalf of the author. Continue Reading
On Friday 17 March top academic thinkers will exchange ideas with Hogan Lovells, including Seagull Song of our IP team in LA, via webinar on key technology drivers for 2017.
The discussion will focus on how data protection, antitrust, copyright, and internet regulation will need to adapt to disruptive technologies, such as AI and blockchain.
Please click here for more information and details of speakers on the panel.
Date – Friday 17 March
8:30 – 10:00 PDT
9:30 – 11:00 MT
11:30 – 13:00 ET
15:30 – 17:00 GMT
16:30 – 18:00 CET
Contacts: Sam Austin & Kelly Power
This short IP Enforcement Focus v-log covers a welcome confirmation from the CJEU on some comparative or misleading advertising ground rules.
In case C-562/15 between Carrefour and Intermarché, the legality of the former’s claim of lower prices than any competitor was called into question. The central issue here was based around whether hypermarket prices were being compared to those of smaller retailers with sufficient information to consumers for them to fully understand the price comparison.
Watch the v-log here
IP Enforcement Focus is a series of written, video and audio posts which plug into your current enforcement issues. Click here to subscribe to IP Enforcement
Shifts in the global political landscape; developments in intellectual property and technology law; and the emergence of disruptive technologies. Businesses need to adapt and stay ahead of the curve to protect, enforce and manage their IP.
In this publication, our global Intellectual Property Team provides an overview of the key trends that shaped our work in 2016 and assesses some of the opportunities and challenges these will present in the year to come – helping you to maximize the value the your brand in 2017.
Topics covered include:
- Post Grant Proceedings
- Trade Secrets
- Domain Names
We also examine emerging trends in technology and politics, and what they mean for your business, including:
- 3D Printing
- Artificial Intelligence
- Blockchain and Smart Contracts
- Connected Cars
- Digital Health
- Digital Single Market
- Smart Energy Systems
- Wearable Technology
We are delighted to have been presented with the following two awards in yesterday´s Managing Intellectual Property Global IP Awards Ceremony:
- European Trademark Team of the Year
- German Contentious Team of the Year
These awards recognise the outstanding firms of the past 12 months and, alongside our team´s MIP Stars awards, they reflect our IP professionals’ hard work and success in combining a global outlook with local knowledge across the life cycle of IP assets.
The European Trademark award represents a well-earned seal of approval on our team´s work in enforcement, strategy and litigation, showing that brand management is at the heart of what we do.
The German contentious award makes this 3 in a row for our German team, demonstrating the effectiveness of our approach to quick and amicable settlements, vigorous defence of our clients’ position and ability to break down complex matters to make them clear and understandable to courts.
As previously reported here, the Internet Corporation for Assigned Names and Numbers (ICANN) has been sued by the disgruntled new generic Top Level Domain (gTLD) applicant, DotConnectAfrica, in order to prevent the delegation of the new gTLD .AFRICA. DotConnectAfrica alleged that a rival application for .AFRICA, which was filed by ZA Central Registry (ZACR), was fraudulent and sought monetary damages from ICANN.
As reported here, DotConnectAfrica had filed a series of legal actions against ZACR and ICANN to prevent the delegation of the .AFRICA gTLD to ZACR. The latest of these actions was an ex parte temporary restraining order requesting that the court prevent ICANN from delegating .AFRICA. While the request for an immediate temporary restraining order was rejected, the court did agree to hear DotConnectAfrica’s new arguments.
However, a judge has now issued a ruling denying DotConnectAfrica’s request for an injunction to prevent ICANN from delegating the .AFRICA gTLD. As a result of this, .AFRICA was delegated to the Domain Name System (DNS) root on 15 February 2017. Continue Reading
The Hogan Lovells IP team invites you to join us for our Annual Patents Conference on Tuesday 9 May 2017. In light of a number of recent, high profile European cases and decisions, we will be providing you with an overview of the outcomes and what they might mean for your organisation. We will also address the potential impact of Brexit on jurisdictional issues. Topics will include:
- The Netherlands: seizure for use in proceedings elsewhere (even when there’s no Dutch patent)
- Actavis v Eli Lilly – the English court’s ability to grant declarations over foreign patents
- Rhodia v Molycorp – the English court’s [in]ability to grant declarations of infringement over foreign patents
- What will happen on these issues following Brexit?
This seminar will be followed by our Annual Patents Party. We look forward to seeing you there.
Date: Tuesday 9 May 2017
Venue: Hogan Lovells, Atlantic House, Holborn Viaduct, London, EC1A 2FG Map
Time 16:30 Registration 17:00 Programme 18:30 Reception
Click here to register for this seminar and here to download a calendar appointment
For more information on this event please contact Louise Bailey