Justin Ferrone

This year saw an increased focus on the extraterritorial application of the Lanham Act, setting up a showdown at the Supreme Court in 2023. The last year also saw cases pressing the intersection of the Lanham Act with the First Amendment and artistic expression—both in the physical world and in the metaverse—and some rulings that will help clarify the likelihood of confusion analysis in various circuits.
As 2022 comes to an end, we look forward to what 2023 has in store.

When an influencer is paid to promote a brand – and the brand’s name is trademark-infringing – can the influencer be on the hook for the infringement? A federal district court just said yes. The result could widely expand trademark litigation against influencers – and could reshape how companies and their influencers relate to one another contractually.

It has long been a fundamental tenet of advertising law that comments made to investors, and particularly those made before the commercial launch of a product or service, do not constitute the kind of “advertising” that is regulated by the Federal Trade Commission (FTC) or the National Advertising Division of the Better Business Bureau (NAD), and are outside the reach of the Lanham Act. That is because advertising law regulates communications that propose a commercial transaction; in contrast, the securities laws govern communications to investors that are designed to promote investments. A recent decision from the NAD has put a big crack in that jurisdictional wall, and threatens to breach the dam that has long shielded comments made in investor presentations from potential liability for false advertising.