Olshan Promoting and Branding Legislation Teams’ Sizzling Matters – 2023
Blissful New Yr! As we start 2023, Olshan’s Promoting and Branding legislation teams share their checklist of sizzling subjects that look to be on the horizon this 12 months and must be of explicit curiosity to you.
1. AUTOMATIC RENEWAL PROGRAMS CONTINUE TO ATTRACT ATTENTION AND SCRUTINY FROM LEGISLATORS AND REGULATORS
States have continued to introduce computerized renewal legal guidelines in 2022, and this pattern seems poised to proceed in 2023. As new state legal guidelines are launched, they add to the hodgepodge of present state legal guidelines governing these applications. The Federal Commerce Fee (“FTC”) has beforehand proposed enhanced federal necessities, which might hopefully result in uniform requirements all through the nation. Along with legislative motion, computerized renewal practices have continued to be the topic of regulatory actions. The California Computerized Renewal Taskforce has remained energetic, most not too long ago taking motion towards Rihanna’s Savage X Fenty lingerie firm. Computerized renewal practices, specifically their cancellation processes, additionally proceed to be a spotlight of the FTC. Particularly, in 2022 the FTC reached a $100 million settlement with an web service supplier, Vonage, in reference to its practices that made it troublesome for subscribers to cancel their service.
2. EXPANSION OF STATE PRIVACY LAWS AFFECTING ADVERTISING AND OTHER ISSUES
Beginning in 2023, a number of new state privateness legal guidelines go into impact in California, Virginia, Colorado, Connecticut, and Utah. These legal guidelines apply not solely to companies positioned in these states, but additionally to companies that meet sure thresholds and gather, retailer, or course of private knowledge from residents of these states. California, the state that continues to paved the way in relation to client privateness legal guidelines, handed a brand new legislation, the California Privateness Rights Act, which amends the prevailing California Client Privateness Act. Substantively, every of the brand new state legal guidelines place further necessities on companies that gather private knowledge, and there are additionally some new restrictions on the flexibility of companies to interact in cross-contextual and focused promoting. It’s rising more and more vital for companies that gather private knowledge to determine whether or not the related compliance thresholds are met, and, in that case, to take the steps obligatory to make sure compliance with the related state legal guidelines. Just like the state computerized renewal legal guidelines, the rising physique of various state requirements cries out for a uniform federal strategy, however with a divided Congress, one doubts that there can be federal motion.
3. INTELLECTUAL PROPERTY IN THE METAVERSE
Because the metaverse continues to evolve, the style during which conventional promoting and mental property legal guidelines and guidelines will apply (and be enforced) in digital worlds can even proceed to evolve. Manufacturers establishing a presence within the metaverse and making use of for registration of their logos within the digital world are ever-expanding. Manufacturers are additionally searching for to implement their trademark rights within the metaverse, and up to date instances filed by manufacturers towards alleged infringers within the metaverse who’re utilizing or promoting digital merchandise, together with lawsuits filed by Nike, Hermès, and others, will start to deal with these points. Will conventional IP possession guidelines apply, or will new requirements develop for imaginary worlds?
4. ATTEMPTS TO HOLD CELEBRITIES AND INFLUENCERS RESPONSIBLE FOR THE PRODUCTS/SERVICES THEY ENDORSE; PARTICULARLY IN THE CRYPTO/NFT SPACE
A rising variety of A-list actors, athletes, and different celebrities are more and more being accused of fraud in reference to class actions regarding services that they’ve been paid to endorse. That is notably true given the collapse of the NFT and crypto asset markets in late 2022. Will the Steve Garvey rule – during which the well-known baseball participant was discovered not accountable for the claims of a excessive profile eating regimen that he was selling – prevail, or will these lawsuits portend new requirements during which celebrities are held accountable for the underlying merchandise that they promote?
5. TELEPHONE CONSUMER PROTECTION ACT – HERE COME THE STATE LAWS
In 2021, the U.S. Supreme Court docket considerably scaled again the definition of an computerized dialing system, thus opening the door for elevated robocalling and SMS advertising. In response, Florida led the cost by enacting a state statute that accommodates a obscure, however broad definition of the time period “automated dialing system.” Just like the federal Phone Client Safety Act (“TCPA”), Florida’s legislation accommodates a $500 per-call penalty. Given the totally different state requirements, the consequence was a tidal wave of sophistication actions and expensive settlements in Florida.
In 2023, comparable legal guidelines in different states will take heart stage and result in new pockets of class-action exercise. Washington’s new legislation permits restoration of $100 per name plus attorneys’ charges; Oklahoma’s mirrors Florida and the TCPA’s $500 restoration determine. Every state legislation has a number of distinctive provisions that can each result in elevated litigation and problem telemarketers’ capability to attract up nationwide plans for compliance. For instance, in Washington, a telemarketer might not proceed speaking for greater than 10 seconds after the patron says they need to finish the decision. Different states have their very own payments within the legislative pipeline.
Except and till the scope of the state legal guidelines are clarified, they current traps to entrepreneurs who depend on texting and telemarketing.
6. FTC CONTINUES TO FOCUS ON ENDORSEMENTS AND REVIEWS
At the start of 2022, on-line vogue retailer, Trend Nova, agreed to a consent order to resolve the FTC’s allegation that it blocked unfavourable buyer opinions from its web site. The FTC alleged that Trend Nova used a third-party interface to robotically submit four- and five-star opinions to its web site, however held again three-star and beneath opinions for overview and approval. The FTC alleged that from late 2015 till November 2019, Trend Nova by no means posted “tons of of 1000’s” of the lower-starred opinions. In accordance with the FTC, suppressing unfavourable opinions deprives customers of doubtless helpful info and artificially inflates the product’s common star score. Notably, this was the FTC’s first case involving an organization’s efforts to hide unfavourable buyer opinions. Alongside the announcement of this settlement, the FTC issued new pointers for on-line retailers and overview platforms who gather and submit client opinions, thus signaling the company’s prioritization of this challenge.
7. U.S. SUPREME COURT EXPECTED TO ISSUE KEY DECISION ON COPYRIGHT FAIR USE
Honest use is an ever-evolving space of copyright legislation and doesn’t at all times have clear-cut steering. After listening to oral arguments in October of final 12 months, the U.S. Supreme Court docket is predicted to challenge a choice on the problem of truthful use which can present additional readability on what constitutes truthful use. The case, Andy Warhol Basis v. Goldsmith, focuses on Andy Warhol’s prints of the musician Prince, which had been based mostly on images taken by well-known rock photographer Lynn Goldsmith. The Second Circuit discovered that Warhol’s prints infringed Goldsmith’s copyrights as a result of they had been derivatives of her images. Andy Warhol Basis’s place is that the prints are sufficiently “transformative” in order to rise to the extent of truthful use. How the Court docket guidelines might have vital affect on inventive expressions.
8. FOCUS ON PRICING DISCLOSURES AND JUNK FEES
A lot of federal businesses have begun to deal with pricing disclosures, together with an examination of the worth related to a selected upsell/ancillary kind product. For instance, the FTC not too long ago introduced rulemaking on this space specializing in so known as “junk charges” – pointless, unavoidable, or shock prices that inflate prices whereas including little to no worth to customers, doubtlessly impacting a wide-array of industries. Comparable rulemaking has been proposed by the Division of Transportation regarding airline pricing/ancillaries (like baggage charges). Entrepreneurs must be cognizant of clearly disclosing their charges and be ready to justify the fees.
What key authorized points do you see within the close to future? Share your ideas with us. After all, in case you have any questions on these or different points, please attain out to us.