Carolyn Toto

Carolyn Toto

Pillsbury Winthrop Shaw Pittman LLP

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As Reliance on “Digital Influencers” Grows, So Does FTC Enforcement

As we saw in a prior post regarding Kim Kardashian and Instagram, the FDA pays attention to how brand companies use paid celebrities to endorse their products. Likewise, the FTC closely scrutinizes how brand companies use...more

11/17/2015 - Advertising Ann Taylor Disclosure Requirements Endorsements FTC Hewlett-Packard Social Networks Strategic Enforcement Plan

New DMCA Exemption Keeps Enthusiasts in the Game

Due to efforts by the Electronic Frontier Foundation (EFF), the Library of Congress adopted in its recent guidelines a limited exemption to the Digital Millennium Copyright Act (DMCA), allowing gamers and preservationists to...more

11/10/2015 - Copyright DMCA Video Games

Establishing the Boundaries of the OCILLA Safe Harbor

As user-generated content explodes over the Internet, intellectual property disputes over posting or uploading such content without the owner’s consent continue to escalate. As we touched on in a recent post, social media...more

11/5/2015 - Copyright Infringement Corporate Counsel DMCA Independent Contractors Intellectual Property Protection Internet Internet Service Providers (ISPs) News Stories Online Platforms Online Videos Photographs Popular Safe Harbors Social Media Social Networks Spam Third-Party Third-Party Liability User-Generated Content Websites Young Lawyers

Road Work Ahead: Automobiles and Augmented Reality

With still about a week left to go, Hudway’s Kickstarter campaign, which began last Wednesday for its augmented reality vehicle accessory, already has over 6,500 backers pledging more than $450,000—several times its initial...more

11/3/2015 - Automotive Industry Cell Phones Facebook Google Google Glass Kickstarter Smartphones Technology Sector Texting

Attention UGC Marketers—Are Your Permissions in Order?

Brand companies have come to view user-generated content as often one of the most effective and authentic ways to advertise their products or services. This is known as “user-generated content marketing.” For example, with...more

10/27/2015 - Advertising COPPA Copyright Ownership Corporate Branding Digital Media Hashtags Instagram Minor Children Online Advertisements Online Platforms Popular Privacy Concerns Privacy Laws Right of Publicity Selfies Social Media Social Networks User-Generated Content Websites

Twitter Sued for Modification of Hyperlinks

We often espouse the value of comprehensive, up-to-date terms of service (TOS) that consistently reflect your current business. And for good reason! Plaintiffs’ attorneys will scrutinize your TOS before helping your users sue...more

10/19/2015 - Business Entities Business Model Class Action Disclosure Hyperlink Online Advertisements Popular Privacy Concerns Social Media Social Networks Terms of Service Twitter

Periscope, Meerkat, HBO and the Live-Stream Dilemma

With live-streaming apps Periscope and Meerkat becoming increasingly popular, the introduction of a “live” element in the social media game is creating unique business and legal concerns. While most of the videos streamed on...more

10/15/2015 - Cable Television Providers Copyright Infringement DMCA HBO Live Streaming Popular Privacy Concerns Social Media Social Networks Takedown Notices Television Programming YouTube

Code Copying Case Highlights Difficulty in Getting a Preliminary Injunction

Continuing the trend in recent years of injunctions becoming harder and harder to obtain, the Northern District of California denied a motion for a preliminary injunction where the defendant has allegedly copied the...more

10/13/2015 - Copyright Copyright Infringement Copyright Litigation Corporate Counsel Gaming Popular Preliminary Injunctions Source Code Video Games Young Lawyers

Social Media Brings the Right of Publicity to the Masses

Do you consider yourself famous? If the answer is no, then you have likely never been concerned with the invasion of your right of publicity. The right of publicity is the right of a person in his or her identity—name or...more

10/8/2015 - Communications Decency Act First Amendment LinkedIn Motion to Dismiss Name and Likeness Popular Preemption Right of Publicity SnapChat Social Media Twitter Young Lawyers

Discovery Rules Continue to Evolve for Cases Involving Social Media

Your social media content is not only susceptible to hacking; it’s also susceptible to disclosure requests from civil litigants (see our Sept. 14 blog post for more details) and even prosecutors without your consent if they...more

10/6/2015 - Appeals Criminal Investigations Criminal Prosecution Disclosure Discovery Discovery Rule Facebook Hackers Instagram Internet Privacy Popular Privacy Laws Social Media Social Networks Stored Communications Act Twitter

FTC Fines Can Add Salt to a Cybersecurity Wound

Cyberattacks are on the rise—so much that we seem to hear about a high-profile hack more often than it probably rains in most parts of California. Although reputational damage from a cyberattack can be scarring, a recent U.S....more

10/1/2015 - Cyber Attacks Cyber Crimes Cybersecurity Data Breach Data Protection Data Security Enforcement Actions FTC FTC v Wyndham Hackers Personally Identifiable Information Policies and Procedures Wyndham

The FDA Takes the Kardashian Endorsement Machine to Task

When Kim Kardashian speaks, the FDA listens. Or, more precisely, when Kardashian, who has 46.8 million followers on Instagram, posts an enthusiastic endorsement—and advertisement—on the social media platform for Diclegis, a...more

9/24/2015 - Celebrity Endorsements FDA Instagram Kim Kardashian Misleading Impressions Online Advertisements Online Platforms Popular Pregnancy Prescription Drugs SnapChat Social Media Twitter

A Good Rule of Thumbnail? Pay the Licensing Fee.

You hire a web designer to create a website for your business. In the background, the designer uses stock photography to beautify the page. Stock photography comprises copyrighted images—often presented in searchable online...more

9/22/2015 - Copyright Copyright Infringement Getty Images Licensing Rights Photographs Popular Social Media Websites

Traditional Discovery Rules Still Apply in Disputes Involving Social Media

A party’s right to privacy has always been an important and sometimes limiting factor in the resolution of discovery disputes. Social media platforms, which allow users to select the extent with whom they share their network,...more

9/15/2015 - Corporate Counsel Discovery Rule Facebook Motion to Compel Online Platforms Popular Privacy Settings Right to Privacy Social Media Social Networks Young Lawyers

The Evolving Role of the Hashtag in Trademark Law

Oh, the once humble hashtag (or pound sign, number sign, octothorpe, etc.). For so long a symbol both ubiquitous and free from controversy, its new life as a go-to signifier of discussions and trending topics on Twitter has...more

9/9/2015 - Due Diligence Hashtags Instagram Popular Social Media Trademark Infringement Trademark Litigation Trademarks Twitter Young Lawyers

Twitter and the (Alleged) $10 Million Tweet

As social media companies and businesses rely more heavily on their social media platforms to make important company announcements, state law claims asserting negligent misrepresentation or failure to adequately disclose...more

9/1/2015 - CA Supreme Court Disclosure Requirements Earnings Reports Financial Markets Investors Nasdaq Negligent Misrepresentation Shareholders Social Media Social Networks Stocks Twitter

Twitter, the DMCA and Copyright in the Age of Sharing

As social media platforms continue to find new ways to allow users to share, post, and forward nonoriginal content and users become more engaged in the practice, the platforms hosting the content and disgruntled original...more

8/20/2015 - Copyright Copyright Infringement DMCA Google Inducement Internet Service Providers (ISPs) Photographs Popular Right of Reproduction Safe Harbors Social Media The Copyright Act Twitter Young Lawyers YouTube

The Growing Scrutiny of Social Media by U.S. Courts and Agencies

The evolution of social media in business from “occasional accessory” to “integral component” has in turn forced the law itself to evolve in an attempt to address social media’s increasing relevance. Recent developments in...more

8/18/2015 - Commercial Bankruptcy Debtors Disclosure Requirements Facebook Investment Adviser Popular Privacy Concerns Reporting Requirements SEC Social Media Social Media Account Ownership Twitter

Ashley Madison and Coming to “Terms” with Data Protection

A recent massive data hack of an online dating site Ashley Madison once again proves that what one publishes, says, or does online, even in seemingly private forums, is never completely private. It’s also a reminder that the...more

8/12/2015 - Adultery Class Action Cyber Attacks Cyber Crimes Cybersecurity Data Breach Data Protection Data Security Dating Services Facebook Google Hackers Marriage Online Platforms Popular Privacy Concerns Privacy Policy Social Media Spouses Terms of Service Websites Wiretap Act

Avoiding Uber Trouble via Good Terms of Service

In a recent lawsuit, Uber Technologies Inc. is accused of violating California’s Unfair Competition Law. Specifically, the complaint alleges that Uber misleads its users by: (1) falsely advertising its services as cheaper...more

8/4/2015 - False Advertising Sharing Economy Taxi Cabs Terms of Service Uber Unfair Competition

Angie’s List Accuses Amazon of Home Improvement Hijinks

Even freed from bricks and mortar, online retailers and service providers are realizing that market share is not infinite. A complaint recently filed by Angie’s List Inc. against Amazon Local LLC for its newly launched online...more

7/29/2015 - Amazon Angie's List Breach of Contract Civil Conspiracy Computer Fraud and Abuse Act Conversion Discovery Injunctions Membership Interest Misappropriation Online Contracts Popular Stored Communications Act Theft Tortious Interference Trade Secrets Unfair Competition Yelp

Social Media Adds Kick to Beer-Themed Trademark Battle

As social media and the numerous platforms continue their exponential growth in popularity and constant evolvement, legal issues surrounding their use also will inevitably emerge. A recent case filed in the Western District...more

7/27/2015 - Beer Best Practices Cease and Desist Internet Popular Social Media Trademark Infringement Trademarks Twitter User Names Websites Wine & Alcohol Young Lawyers

Intent to Lose? Be Wary of Pitfalls Involving Intent-to-Use Trademark Applications.

Merger and Acquisitions often involve the acquisition and/or assignment of trademarks. Companies acquiring trademarks must beware of potential problems lurking with intent-to-use (ITU) trademark applications (or applications...more

5/23/2014 - Acquisitions Assignments Due Diligence First-to-File Intent-to-Use Lanham Act Mergers Trademark Trial and Appeal Board Trademarks USPTO

How Trade Mark Defendants are Winning from MedImmune

In 2007, the US Supreme Court set a new test for declaratory judgment actions in MedImmune. Its decision continues to have a profound impact on trade mark cases, explain Bobby Ghajar and Carolyn Toto. One-Minute Read...more

10/14/2013 - Cease and Desist Orders Declaratory Judgments Genentech Infringement MedImmune v Genentech SCOTUS Subject Matter Jurisdiction Trademarks USPTO

What You Should Know About Electronic Subscriptions and Copyright Law: A Best Practices Guide

Increasingly, printed matter is being made available via the Internet in electronic form, and both publishers and readers alike are starting to prefer an online format over the printed hardcopy format. One example is...more

8/20/2013 - Compliance Copyright e-Books Enforcement Internet

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