New Developments in the World of Section 230
Podcast - Developments in FDA & DOJ Regulation and Enforcement of Manufacturer Communications
Under California’s Proposition 65 (“Prop 65”), businesses are required to give “clear and reasonable warnings” to consumers regarding potential chemical exposure if their product contains a chemical “known to the state to...more
On February 25, 2021, the United States District Court for the District of Kansas issued an opinion granting summary judgment in favor of CardX, LLC (CardX), and found unconstitutional “a Kansas law that prohibits sellers...more
This sixth edition of Unprecedented, our weekly update on COVID-19 litigation, sees us reporting on many of the same types of cases. Consumers continue to seek refunds for goods and services that have been disrupted by the...more
Food and beverage advertising, like other forms of speech, is usually entitled to First Amendment protection – even if it may not always enjoy the same caliber of protection as, for example, journalism or political speech. ...more
On January 23, 2020, the Texas Fifth District Court of Appeals in Dallas retracted its previous ruling in the trade secrets dispute Goldberg, et al. v. EMR (USA Holdings) Inc., et al. and issued a new opinion upon rehearing. ...more
The Eighth Circuit Court of Appeals recently upheld a District Court’s decision to strike down a state law that placed severe restrictions on alcohol advertising. For example, under the law, Joe’s Bar could run the ad, “Drink...more
In a trilogy of recent cases, the Texas Courts of Appeals have employed the “commercial speech” exception to exclude certain business claims from the scope of the Texas Citizen’s Participation Act (“TCPA”). This trend will...more
Barry M. Benjamin, partner in the New York office and chair of Kilpatrick Townsend’s Advertising and Marketing group, was honored to present at a recent Practicing Law Institute Bridge the Gap program discussing legal issues...more
In today’s world — where social media has become a source of news for many — companies and individuals often find themselves the subject of negative and anonymous online comments. These comments can give rise to legal claims...more
First Amendment challenges to the Telephone Consumer Protection Act (TCPA) are in the midst of a revival. The TCPA makes it unlawful to call or text a cell phone using an automatic telephone dialing system (ATDS) or...more
The New York Court of Appeals has issued an opinion in Expressions Hair Design v. Schneiderman interpreting the state’s law that prohibits merchants from imposing a surcharge on credit card purchases (Section 518 of the...more
Now we’re talking! As I’ve written on multiple occasions, the Telephone Consumer Protection Act (“TCPA”) is the broadest restriction on constitutionally protected speech in our nation’s history. Worse still, the statute is...more
I spent some time speaking with reporters yesterday about how we can really get to the bottom of the “robocall” epidemic plaguing this country. I focused on the need to better define our terms–so we can identify the real...more
A recent California Court of Appeal decision highlights the narrow construction given to the commercial speech exemption of California’s anti-SLAPP statute, and the burden on plaintiffs opposing an anti-SLAPP motion on the...more
Two incredible things happened in 1992 for the NFL football team Washington Redskins. It won the Super Bowl and applied to register a trademark Washington Redskins. It has not been so lucky ever since. It has not won another...more
Federal Circuit Summaries - Before Dyk, Moore, and Stoll. Appeal from the Trademark Trial and Appeal Board. Summary: The bar in § 2(a) of the Lanham Act against registering immoral or scandalous trademarks is an...more
• The Federal Circuit held that the “immoral or scandalous” clause of Lanham Act § 2(a), which prohibits registration of a trademark that “consists of or comprises immoral or scandalous matter,” is unconstitutional under the...more
The Asian American members of the band the Slants adopted that name to “reclaim” and “take ownership” of the derogatory term. The United States Patent and Trademark Office (“USPTO”) refused to register a trademark application...more
Picking up from my last installment of this series exploring the regulatory history of off-label communication, this post highlights some recent trends in FDA enforcement and guidance related to off-label promotion. Not...more
Well, that happened! According to the Supreme Court’s opinion in Matal v. Tam, Section 2(a) of the Lanham Act, which purports to prohibit the registration of marks that “disparage . . . persons,” is unconstitutional. ...more
This week, the U.S. Supreme Court emphasized the importance of broad free speech protection in striking down a statute that allows the U.S. Patent and Trademark Office (USPTO) to refuse registration of disparaging trademarks....more
This is Part 3 in my series exploring the history of FDA’s regulation of off-label communications, which has become newly relevant in light of the recent events highlighted in Part 1. In this installment, I continue...more
The Missouri Court of Appeals has ruled that the Kansas City, Missouri, Board of Adjustment abused its discretion in failing to grant a variance to Antioch Community Church (Church) to install digital components into its...more
The First Amendment is well known as a limit on state power to restrain speech. Attempts to censor a newspaper, film, or video game, or to limit discussion in a public forum, are subject to the most exacting — and often...more
Annually, California’s Courts of Appeal and the Ninth U.S. Circuit Court of Appeals regularly issue several dozen published opinions interpreting California’s anti-SLAPP statute, Civil Procedure Section 425.16 et seq., and...more