My colleague, Bridget Short, recently drafted an alert regarding an option for trademark owners seeking to avoid cancelation of a registration due to a temporary interruption in use and inability to file a declaration of use.

Due to circumstances beyond their control, trademark owners may file a declaration of nonuse setting forth (1) the date when such use of the mark in commerce stopped; (2) the approximate date when such use is expected to resume; and (3) facts to show that nonuse as to those goods, services, or classes is due to special circumstances that excuse the nonuse and is not due to an intention to abandon the mark.  This option may prove useful to trademark owners suffering from disruptions due to the economic effects of the coronavirus.

Read the full alert here.

Whether it is a typo in a president’s tweet or simply the word “The,” trademark hopefuls are quick to jump at the opportunity to obtain a trademark in virtually any and all phrases. Recently, the terms “Coronavirus” and “Covid-19” are no different.

As the Covid-19 pandemic sweeps across both the world and the United States, many onlookers may be considering whether to apply for trademarks in Coronavirus, Covid-19, or any number of related phrases. In fact, some companies and individuals have already submitted Covid-19 related trademark applications. For instance, multiple applicants have already sought use of Covid-19 or Coronavirus to place on apparel, and one company even registered for a Coronavirus phrase to use on magazines focused on the pandemic.

However, just as the USPTO ultimately determined with “Covfefe” and “The,” terms using Coronavirus and Covid-19 likely will not be given trademark protection. Put simply, one of the most basic tenants of trademark law is to identify the source or origin of goods or services through use of a mark. When anyone sees the term “Covid-19” or “Coronavirus,” they likely will not think immediately of an apparel line or other product; rather, they will think of the virus itself. As a result, the USPTO is unlikely to grant any trademarks in Coronavirus or Covid-19. Thus, anyone considering seeking such trademarks should closely evaluate their likelihood of success.

For up to date information on the Coronavirus, including webinars, articles, and various resources created by Fox Rothschild attorneys, visit the Fox Rothschild Corona Resources page here.

As the effects of coronavirus continue to ripple across the globe, the Federal Trade Commission (FTC) and Food and Drug Administration (FDA) have warned seven companies for purportedly “making deceptive or scientifically unsupported claims about their ability to treat coronavirus (COVID-19).”   The FTC press release is located here.  The FTC and FDA alleged that the companies were advertising products such as “teas, essential oils, and colloidal silver” as being able to treat or prevent coronavirus.   The letters warned the companies against making unsubstantiated claims, told the recipients to immediately cease making all such claims, and stated that the FTC was prepared to seek a federal court injunction and order requiring the consumer’s money to be refunded.

The FTC indicated that it was paying close attention to companies that advertised products as cures or treatment for the coronavirus given the “high level of anxiety over the potential spread,” and that the FTC was “prepared to take enforcement actions against companies that continue to market this type of scam.”  In the press release, the FTC warned that it and the FDA would “continue to monitor social media, online marketplaces, and incoming complaints” to protect consumers from companies that fraudulently market products.

The FTC and FDA’s actions in sending the letters provide a strong cautionary message to companies marketing products relating to the coronavirus — if they make unsubstantiated claims, they can face government scrutiny and litigation.  To avoid this, companies should not make claims they cannot scientifically substantiate, especially claims relating to the coronavirus.

On Friday, the United States Patent & Trademark Office (USPTO) announced that it was cancelling all in-person meetings — including all examiner interviews, all meetings between examiners and applicants, and all hearings before the Patent Trial & Appeal Board (PTAB) and Trademark Trial and Appeal Board (TTAB). The USPTO noted that parties will receive further instructions on participating via video or telephone in advance of any such interview, meeting, or hearing.

Last Thursday, the Federal Circuit announced that, with an exception for cases where all counsel is local, it is cancelling April oral arguments in favor of resolving the cases on the briefs or conducting the hearings via telephone at the previously-scheduled time.  Today, the United States Supreme Court announced that it is postponing oral arguments currently scheduled for the March session (March 23-25 and March 30-April 1). The U.S. Copyright Office has also announced that it is closed to the public until April 1.

By all accounts, and as predicated by multiple news outlets earlier this month, COVID-19 may have a substantial and chilling effect on advertising.  Adweek, for example, wrote an article in early March predicting how the coronavirus would disrupt the global advertising industry, not merely by major events being cancelled but also by a potential decrease in advertising spend and by new challenges in advertising production.  However, Adweek poignantly notes that TV advertising may not suffer as consumers increasingly choose to engage in social distancing at home.

A more recent article by Digital Doughnut explains how ecommerce and digital marketing is being affected.  The article predicts an increased shift to online shopping but also a potential reduction in the availability of goods, which could lead companies to withhold advertising dollars.  Ending the article, Digital Doughnut provides some salient advice:  “For brands, the key to mitigating the impact of coronavirus lies in putting the customer at the heart of marketing and keeping an eye on changing customer behaviour, particularly in response to changing ecommerce trends.” It’s advice like this that has resulted in CEOs of countless major companies sending emails to consumers assuring them of their commitment to consumer health, safety, and well-being.

Some brands are choosing to close their retail stores in an effort to minimize social interaction and keep their own employees healthy, and certain companies (particularly restaurants and bars) are being forced to close.  If not open, why advertise?  Yet other brands (think those selling disinfecting/sanitizing products, staple food items, video conferencing services, and, strangely, toilet paper) seem to be thriving without having to spend a single extra advertising dollar. I also personally wonder if Covid, Inc., the Arizona-based A/V connectivity solutions company, has seen a positive or negative effect from internet search traffic.  Then of course there is Constellation Brands, the company that owns the Corona beer brand, which has been the subject of countless internet articles, prompting the company to issue a press release at the end of February confirming its strong performance despite the virus.

As the coronavirus continues to spread and as news continues to unfold about its effect on the human population and on the operation of small businesses, we’ll likely see additional impacts on brands, advertising, and consumer behavior.

Earlier this month, the Federal Trade Commission (FTC) announced that it had voted to seek public comment on its Guides Concerning the Use of Endorsements and Testimonials in Advertising.  The FTC explains that the Endorsement Guides (as they are frequently called) provide guidance to ensure that endorsements and testimonials in advertising follow Section 5 of the FTC Act, including requiring that “when there is a connection between an endorser and a seller of an advertised product that could affect the weight or credibility of the endorsement, the connection must be clearly and conspicuously disclosed.”

More information regarding what the Endorsement Guides require, as well as instructions for submitting a public comment, are included in the FTC’s  Federal Register Notice.

 

Every four years, we celebrate Leap Year with questions of how we’ll spend our extra “free hours” and hopes of finding brands offering special deals. Many restaurants offer free food to those born on February 29, and retailers may offer specific Leap Year discounts (such as 29 cent deals).

The day thus serves as another excuse for fun and creative advertising. So brands: have some fun today, and consumers: score some free stuff.

Earlier this month, the FTC revealed that consumers have lost over $200 million to “romance scams” in 2019, which is up nearly 40% since 2018, and is six times higher than it was five years ago.  As the FTC detailed in its blog post, “[p]eople reported losing more money to romance scams in the past two years than to any other fraud reported to the FTC.”  The increased proliferation of romance scams is unsurprising – social media and online dating apps gives scammers easy access to targets.

The FTC provided a few, commonsense ways to spot scammers: they want to move the relationship along quickly; they have an emergency such as hospital bills, travel expenses (perhaps for seeing their target), gambling debts, or the like; and they ask their targets to help pay for those expenses by wiring money or sending gift cards.  The FTC also identified common fake professions, which include working on an oil rig, being in the military, or a being a doctor with an international organization.

Essentially, if somebody claiming to work for Doctors Without Borders asks for help paying off their gambling debt, he or she might be a scammer.  Same goes for oil rig workers who need money to visit their sick grandmas in Des Moines.  Love can be blind to a lot of things, but it shouldn’t be blind to risks associated with romance scams in the social-media-driven world of today.

 

 

 

 

With the continued growth of social media and companies seeking to expand their online presence, companies are reminded to keep right of publicity considerations at the forefront of all promotional decisions.  As discussed in a prior blog post, the right of publicity prevents the unauthorized commercial use of an individual’s name, likeness, or other recognizable aspects of one’s persona.  This right is a property right that prohibits others (including companies) from using an individual’s identity for a commercial gain.  This situation most often occurs when a company references a celebrity to promote their product or service without the celebrity’s permission.  The right of publicity is protected by state law, not federal law.  More than half of states recognize the right of publicity in some capacity.

Among other considerations, companies seeking to use an individual’s persona should also:

  • Evaluate the content to determine if use of the content could violate any rights of publicity
  • Determine if the content has been trademarked
  • Obtain permission from before using the person’s identity
  • Confirm all images used have been authorized for use
  • Ensure social media promoters comply with all rules and regulations

Companies are also encouraged to comply with all advertising laws when using social media influencers.  See a prior blog post on compliance for social media influencers here.

This is one we wonder year after year.  The International Business Times reports that a 30-second ad for this year’s Super Bowl will run you $5.6 million (a $400,000 increase from last year), and that some companies opt for even longer spots.  How do companies evaluate their return on investment at that price point?  That’s a hard question to answer and, probably, it depends.  For some, it may be the assumption that enough Super Bowl watchers are moviegoers who expect to see a few great trailers (albeit shorter than what you can find online and fewer in number than years past according to the Hollywood Reporter).  For others, it may be a belief that consumers simply expect to see ads from their favorite beverage, tech, and car brands who consistently deliver on Super Bowl Sunday (though some major brands appear to be spending their advertising dollars elsewhere this year).  And for many, it’s the sheer number of eyeballs—”impressions” in the advertising world—that can be reached in a single instance.  Yet with Super Bowl viewership on the decline, and increased online over tv advertising, it begs the question: Is a single Super Bowl ad worth $5.6 million?  You be the judge when you tune in this Sunday night.