In its first opportunity to apply the Supreme Court’s recent decision in Jack Daniel’s Properties v. VIP Products LLC, which held that the First Amendment did not protect infringing works that “use [the complainant’s] mark [ ] as a mark,” the Second Circuit upheld an Eastern District of New York order enjoining art collective MSCHF from offering its “Wavy Baby” sneaker that likely infringed Vans’ marquee “Old Skool” sneaker. See Vans, Inc. v. MSCHF Prod. Studio, Inc., 602 F. Supp. 3d 358 (E.D.N.Y. 2022). The Vans case and appeal had both been stayed pending the outcome of Jack Daniel’s.Continue Reading Second Circuit Finds Art Collective Can’t Use First Amendment to Skate Out of Injunction
In Federal Trade Commission v. LeadClick Media, LLC, 2016 U.S. App. LEXIS 17383 (2nd Cir. 2016), the Second Circuit recently held that an affiliate marketing network provider could be subjected to liability under the Federal Trade Commission Act (“FTC Act”) for deceptive marketing materials published by the affiliates. It also concluded that Section 230 of the Communications Decency Act (“CDA”) did not immunize the network provider from liability. In doing so, the Second Circuit emphasized that the network provider had knowledge of and the authority to control the content of the affiliate websites. This ruling could increase the exposure of internet businesses to liability for deceptive acts or practices engaged in by third-party vendors or independent contractors.
Continue Reading No Protection for Network Marketing Provider That Had Knowledge and Authority to Control Deceptive Conduct of Affiliates