Addressing legal issues with the latest technological developments and social media trends.
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In 2016, Niantic will blur the lines between our world and the world of Pokémon with the release of Pokémon Go, its upcoming augmented reality game for mobile phones, which will allow fans to see and interact with Pokémon in the real world. Similar to its AR game Ingress, Niantic’s new venture will utilize location information and augmented reality to entice fans to search far and wide to discover Pokémon in our own world. As an added experience, a Bluetooth wearable device developed by Nintendo (called the Pokémon Go Plus) will notify players of nearby Pokémon and other related game events via vibration and LED lights, enabling players to remain active in the game even when not looking at their phone. With these and other exciting features, there is no doubt that Pokémon fans everywhere—including some Pillsbury attorneys—are eagerly awaiting the game’s release. As that release nears, though, it’s a good time to consider the potential legal implications of such AR-reliant games.

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In a recent federal district court case in the Northern District of California (Case No. 13-cv-04608-HSG), Pintrips Inc., a website-based travel planning service, effectively pinned to the mat the trademark claims brought against it by Pinterest Inc., the operator of the popular image-sharing website. Following a bench trial, the Court rejected Pinterest’s claims of trademark infringement and dilution, as well as other related state and federal causes of action, which were based on Pinterest’s rights to its “Pinterest,” “Pin” and “Pin It” word marks. The case is of interest to industry observers and participants alike for a number of reasons. In the course of providing practical insight into the judicial thought processes at play in a point-by-point application of the eight “Sleekcraft” factors (from the 9th Circuit’s 1979 decision in AMF Inc. vs Sleekcraft Boats) that can be considered when determining if a mark has been infringed, the case also yielded some insight on the impact of timing in regard to a defendant’s knowledge of the plaintiff’s mark; the potential of making a consumer jump through some hoops; and on the very nature of a “social media service.”

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Google goes Trek with a look to the lapel; Facebook continues its push into the workplace; Slack goes down for a few hours; a cyberlocker operator goes down for a few years; and more.

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Colleague Caitlin Bloom Stulberg has recently released a thorough examination on FDA compliance in the realm of consumer-generated content.

It’s an issue we discuss often and is becoming more prevalent as increased social media use blurs the line between manufacturer-promoted advertising and independent consumer opinions. The discussion investigates when consumer-generated content may be imputed to a manufacturer and best practices to remain in compliance with FDA regulations.

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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 paid or sponsored endorsers. Be it digital influencers or bloggers, brand companies must be mindful of the disclosures required to be made in connection with any advertisement or promotion disseminated by an endorser for the brand company. If the brand company provides compensation of any kind to the endorser in exchange for the promotion, FTC regulations require disclosure of this fact. Per the FTC’s 2013 .com Disclosures guidelines, the disclosure must be “clear and conspicuous.” If the brand company uses an advertising agency, the company must ensure that the agency is complying with the FTC’s regulations. Ultimately, the brand company can be held liable for FTC violations by its advertising agency.

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Stories of interest this week include an open-sourced AI from Google, the near-future of self-driving cars, two apps that might make the world a better place, and more.

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In their recent Alert on the Senate’s passage of the Cybersecurity Information Sharing bill, colleagues Brian E. Finch, Elizabeth Vella Moeller and Craig J. Saperstein explore and evaluate the U.S. Senate’s approval of legislation (long sought by industry) that would facilitate information sharing (including threat indicators) across government and industry lines in real time, and provide liability protection to companies that participate.

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Stock-puzzle

In their recent Client Alert, colleagues David S. Baxter, Robert B. Robbins, Jonathan J. Russo, and Matthew J. Kane examine the SEC’s adoption of “Regulation Crowdfunding,” the long-awaited final rules regulating what has become the investment vehicle of choice for many creators, entrepreneurs and consumers alike in the Internet Age. Regulation Crowdfunding will allow smaller, private U.S. companies to raise up to one million dollars in a 12-month cycle by selling securities over the Internet or web-based apps and other tech to small individual investors.

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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 modify a video game to restore access to the video game for “local gameplay.” Specifically, a video game owner may modify an old video game to avoid the need for an authentication process when the copyright owner no longer supports the servers that facilitate such a process. This exemption will provide video game enthusiasts with the ability to play many classic video games. While this exemption is a victory for gamers and preservationists, not all of them are celebrating, given that the Library of Congress did not agree with the EFF on its other proposals related to the preservation of video games.

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Stories of interest this week include the doggy IDing skills of the Facebook AI, Apple looking to apply Force Touch to its keyboards, the WWE’s experiment with virtual reality, Intel’s plans for the Internet of Things, and more…

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