Consumer Brands: Is Your Brand Protected Across Every Channel?

Trade dress is a form of intellectual property protection under the Lanham Act that extends to the overall visual appearance of a product, its packaging, or a retail environment, and it is protectable as a trademark if it is non-functional and has acquired distinctiveness in the minds of consumers as an indicator of the brand's origin. A trade dress infringement claim requires the plaintiff to show that its trade dress is distinctive, that the defendant's trade dress is likely to cause consumer confusion as to the source of origin, and that the plaintiff's trade dress is non-functional.

Trademark litigation and counseling and intellectual property counsel can advise on the trade dress protectability analysis and develop the trade dress protection and enforcement strategy.

The most effective brand protection strategy combines federal trademark registration of the brand's word marks, logo marks, and trade dress with an active monitoring and enforcement program that identifies infringing uses and counterfeit products in the marketplace. A consumer brand should register its marks in all classes of goods and services in which it operates or plans to expand, conduct regular clearance searches before launching new marks or product lines, register its marks in the countries where it distributes its products, and maintain a record of trademark use that will support enforcement actions.

Brand protection and trademark law and trademark registration counsel can advise on the registration strategy most appropriate for the specific brand's portfolio and develop the registration and enforcement strategy.

Trademarks and brand protection and trademark law counsel can advise on the brand protection strategy most appropriate for the specific consumer brand and develop the comprehensive brand identity protection and monitoring strategy.

The FTC's endorsement guidelines require brands to ensure that any material connection between the brand and an endorser, such as a payment, gift, free product, or employment relationship, is clearly and conspicuously disclosed in any endorsement communication, and the FTC has updated its guidance to address the specific disclosure requirements applicable to social media influencer posts, native advertising, and AI-generated endorsements. A material connection disclosure must be placed in a location and format that is likely to be seen and understood by the audience before they view the endorsement.

Advertising and marketing law and consumer protection law counsel can advise on the FTC endorsement disclosure requirements, assess whether the current influencer agreements satisfy the applicable requirements, and develop the endorsement compliance strategy.

The right of publicity is a state law right that protects individuals from the unauthorized commercial use of their name, likeness, voice, signature, or other identifying persona, and consumer brands that use celebrity or influencer names, likenesses, or personas in advertising without proper authorization are exposed to right of publicity claims that can result in significant damages, including disgorgement of the profits attributable to the unauthorized use. The right of publicity applies both to living individuals and, in many states, to the personas of deceased celebrities.

Advertising and marketing law and intellectual property counsel can advise on the right of publicity issues, assess any exposure from the use of individual names, likenesses, or personas, and develop the clearance and risk management strategy.

Dark patterns are deceptive user interface designs that manipulate consumers into making purchases, sharing data, or subscribing to services that they did not intend to agree to, and the FTC has identified specific dark patterns as unfair or deceptive acts or practices under Section 5 of the FTC Act, including confirm-shaming, hidden costs, and trick questions that use confusing double-negative language in consent checkboxes. Several states, including California, Colorado, and New York, have enacted specific laws prohibiting dark patterns in digital commerce.

Consumer protection disputes and unfair competition law counsel can advise on the dark pattern liability exposure in the specific brand's digital interfaces and develop the dark pattern remediation and compliance strategy.

The FTC's Negative Option Rule requires brands that offer subscription or auto-renewal programs to clearly and conspicuously disclose all material terms of the subscription before obtaining the consumer's consent, to obtain express informed consent to the subscription before charging the consumer, and to provide a simple mechanism for cancellation that is at least as easy to use as the mechanism used to sign up. Several states, including California and New York, have enacted automatic renewal laws that impose additional disclosure and consent requirements beyond those required by the FTC rule.

Consumer protection law and consumer law counsel can advise on the subscription disclosure requirements, assess whether the current disclosure and cancellation practices satisfy the applicable requirements, and develop the subscription compliance strategy.

Strict liability in tort holds a manufacturer, distributor, or seller of a consumer product liable for injuries caused by a defective product regardless of whether the defendant exercised reasonable care, and a product can be defective in its design, in its manufacture, or because of a failure to provide adequate warnings. A consumer brand that places its label on a product manufactured by a third party may be subject to strict liability as a seller even if it had no involvement in the design or manufacture of the product.

Product liability and consumer product injuries counsel can advise on the strict liability exposure applicable to the specific consumer product and develop the product liability risk management and defense strategy.

The most significant consumer protection litigation risks for consumer brands include false advertising class actions alleging that the brand's advertising or labeling misrepresents the product's ingredients, efficacy, country of origin, or environmental attributes, subscription fraud class actions arising from the brand's automatic renewal or negative option billing practices, data privacy class actions arising from the brand's collection and use of consumer personal information, and product liability class actions or mass torts arising from alleged defects.

Consumer protection disputes and class actions and multi-district litigation counsel can advise on the consumer protection litigation risks applicable to the specific brand and develop the consumer litigation risk management and defense strategy.