Consumer products and IP (Part 6): deriving a copyright for consumer products

By Tamsen Barrett (US), Thomas Orsak (US) and Sean Patrick McGinley (US) on September 13, 2021 Posted in General

Although other forms of intellectual property tend to be most relevant to consumer product makers, copyright ownership is also an important consideration and can play a key role in product development and protection. Copyrights protect artistic works, and given the creativity that goes into product design, there are many aspects of a consumer product that can potentially infringe another person’s copyright. Failing to understand these rights exposes companies to nuisance claims and pricey litigation. But keeping copyright issues front of mind can help consumer product companies from running into costly litigation.

What is a copyright?

In the United States, copyrights… Continue Reading

Consumer products and IP (Part 5): the download on trademarks for consumer products

By Tamsen Barrett (US), Thomas Orsak (US) and Sean Patrick McGinley (US) on August 11, 2021 Posted in General

Given the influence trademarks have on consumer decisions, proactive strategies by consumer product companies can yield short- and long-term gains. Trademarks influence consumers by connecting a product to a company—a simple means to increase recognition and boost sales. But, ignoring competitor’s rights could lead to legal consequences, marketing limitations, and even seizure of infringing goods.

What is a trademark?

A trademark is any word, name, symbol, or device used in commerce to indicate a product’s source. Trademark owners have the presumptive exclusive right to use—and prevent others from using—the mark.

In practice, a trademark is any design or feature that … Continue Reading

Consumer products and IP (Part 4): demystifying the impact of trade secret misappropriation for consumer products

By Tamsen Barrett (US), Thomas Orsak (US) and Sean Patrick McGinley (US) on June 30, 2021 Posted in General

Trade secrets protect consumer product companies by preventing competitors from stealing unique knowledge. Rights under trade secret law cover valuable knowhow that is not publicly known. In enforcing their rights, companies can prevent the exchange of information, taking of documents, and even movement of employees. Not understanding when a trade secret is improperly acquired, used, or disclosed can result in costly litigation and liability for the misappropriator.

What are trade secrets and trade secret misappropriation?

The federal government and most US states (all but New York and North Carolina) and territories, have enacted a version of the Uniform Trade Secrets … Continue Reading

How data privacy can affect consumer goods

By Will Troutman (US) on June 2, 2021 Posted in General

Check out this recent post on our NT Analyzer blog from my colleagues, Steve Roosa and Dan Rosenzweig, regarding data privacy impacts on the consumer markets/retail space. Steve and Dan will be featured tomorrow, June 3, at the International Association of Privacy Professionals Global Privacy Summit to discuss best practices in managing digital privacy risk, including CCPA/CPRA, Schrems II, and iOS. You can register here for their discussion, which will include a demo of NT Analyzer, our privacy compliance tool suite.… Continue Reading

Consumer products and IP (Part 3): the intersection between consumer products and design patents

By Tamsen Barrett (US), Thomas Orsak (US) and Sean Patrick McGinley (US) on May 25, 2021 Posted in General

Although utility patents are far-and-away the most common type of patents, design patents present additional options for protecting consumer products. These patents stop competitors from copying a product’s unique and inventive look and/or design. Recent decisions have granted significant infringement damages to patent owners—with one such case resulting in a $339 million verdict. (See Samsung Electronics v. Apple).

What are design patents?

In short, design patents claim part or all of a product’s ornamental look. This includes an article’s shape, configuration, or surface. Examples of consumer-product-related design patents include:

Container lids,
Eyeglass frames,
Snowboard bindings,

Consumer products and IP (Part 2): what’s a patent got to do with it?

By Tamsen Barrett (US), Thomas Orsak (US) and Sean Patrick McGinley (US) on May 20, 2021 Posted in General

Consumer product companies face unique exposure to utility patent infringement. Patents can impact multiple aspects of consumer products, from manufacturing and shipping to compositions and use.

Active patent management strategies can help avoid liability while simultaneously protecting rights. Understanding these consequences and strategies can provide companies a legally-enforceable marketplace advantage.

What is a utility patent?

Utility patents grant owners an exclusive right to stop others from making, using, selling, offering to sell, and importing the claimed invention. Utility patents also open up possibilities for the owners to obtain damages resulting from others’ infringement.

The protected invention can be any new … Continue Reading

Social media apps, CDA section 230, and products liability

By Will Troutman (US) and Susan Ross (US) on May 19, 2021 Posted in General

Earlier this month, we saw an eye-opening Ninth Circuit opinion regarding products liability theories applied to social media apps. In short, the Ninth Circuit held section 230 of the Communications Decency Act does not shield the owner of a social media app from liability for third party content when the dispute involves the design of the app, rather than the content on it. Check out this detailed analysis from our friends at the Social Media Law Bulletin.… Continue Reading

Consumer products and IP (Part 1): why it matters

By Tamsen Barrett (US), Thomas Orsak (US) and Sean Patrick McGinley (US) on May 17, 2021 Posted in General

Intellectual property (IP) rights can be a blessing and a curse for consumer product designers, manufacturers, and sellers. IP rights allow companies to protect their own creations, limit others from obtaining detrimental IP rights, provide licensing opportunities, and help deter legal challenges. But consumer products companies also face significant exposure to IP infringement claims in the form of patents, trade secrets, trademarks, copyrights, or false advertising.

This is the first in a series of posts where we will walk through various IP issues impacting consumer products—and what companies can do to make the most of opportunities and mitigate liability.

Consumer

FDA CBD enforcement continues under Biden

By Will Troutman (US), Mark Faccenda (US) and Katie Fragoso (US) on May 6, 2021 Posted in General

In the first few months of the Biden Administration, the Food and Drug Administration has continued to actively pursue companies marketing and selling CBD products in violation of the Federal Food, Drug and Cosmetic Act (the “FD&C Act”), picking up where the Trump administration left off. FDA’s recent efforts target products marketed as unapproved drugs for pain relief.

FDA previously issued rounds of warning letters to companies marketing CBD dietary supplements as effective for treating serious diseases such as cancers, or because CBD was added to human and animal foods, all in violation of the FD&C Act.

In the latest … Continue Reading

California District Court grants preliminary injunction barring Prop 65 acrylamide lawsuits

By Lauren Shoor (US) on March 31, 2021 Posted in California Proposition 65

Prop 65 claims for alleged exposure to acrylamide in food are all too common. In the first three months of 2021 alone there have been 109 acrylamide notices issued. Acrylamide is not a chemical that is intentionally added to food, but rather forms in many types of foods when cooked at high temperatures, including chips, French fries, baked goods, and coffee.

In the face of increased enforcement over acrylamide, including the ongoing coffee litigation, the California Chamber of Commerce filed a lawsuit against the California Attorney General seeking to halt enforcers from requiring companies to provide Prop 65 cancer … Continue Reading