In the eyes of the law

The FTC recently updated its Guide Concerning the Use of Endorsements and Testimonials in Advertising effective December 1, 2009 which concerns testimonials and endorsements on websites and blogs. Going forward, if you (or a user on your blog or website) represent results from the use of a product or service as typical when that is not the case, you will need to also disclose the results that most consumers can expect. This is different from the previous FTC Guide which allowed advertisers to use extremely positive results in a testimonial as long as they included the disclaimer such as “these results are not typical.” In addition, the revised Guide also requires that the relationship between a supplier of the product or services and the endorser to be disclosed.  For example, if a blogger recommends a product on their blog that they received for free or were paid to discuss on their blog, the blogger is required to disclose this information in the blog. Similarly, if an employee recommends a product or service on a discussion board or blog, the employee is required to disclose that he or she is employed by the manufacturer or supplier of the service. The revised Guide seems to indicate that both endorsers and advertisers could be liable under the FTC Act for statements they make in an endorsement.  This would include false or unsubstantiated statements and the failure to disclose a material connection between the advertiser and endorser.

In June, the U.S. Supreme Court ruled in Melendez-Diaz v. Massachusetts, (129 S.Ct. 2527 (2009) that prosecutors cannot introduce a crime lab report into evidence without making the analyst available at trial.  Despite the fact that this ruling is only six months old, the U.S. Supreme Court has agreed to hear this issue again on January 11, 2010, with a new set of facts in the case of Briscoe v. Virginia, No. 07-11191.  Because the Court was split 5-4 in the June decision (with Souter in the majority), it will be interesting to see if the ruling will be different this time with Sotomayor now the in place of Souter.  To me it should be very obvious that the preparer of a report that can result in serious jail-time should be subject to the defense’s scrutiny and cross-examination.  Of course, others will say that this puts a burden on the already overworked crime lab personnel if they have to appear in court every time a report they prepared is used.   However, the Sixth Amendment to our Constitution requires that a defendant be afforded the opportunity to confront witnesses against it, and what could be a more damaging “witness” than a lab report.  With all of the cases where new DNA tests are resulting in the release of innocent people from prisons and the public’s willingness to embrace forensics as gold because of the popularity of shows like CSI, shouldn’t we at least be able to question the people who actually prepared the damaging reports at the initial trial?

In Empresa Cubana del Tabaco (Cubatabaco) v. Culbro Corp. and General Cigar Co.,  97 Civ. 8399 (S.D.N.Y. 2009) the Federal Court in the Southern District of New York has reversed a number of previous rulings in this case and granted Cubatabaco an injuction which would effectively stop General Cigar from using the name “COHIBA” on its cigars.  This is a very interesting case from an intellectual property standpoint because, as we all know, there has been an embargo on Cuban Cigars for over 4 decades.  Trademark misappropriation occurs under New York law when a company intentionally uses someone else’s mark which is commonly associated with a foreign company.  Although there appears to be conflicting law on whether “bad faith” is required, the Court indicated that under the present facts, the use of the “famous” cigar name by a U.S. company could damage the goodwill in the authentic Cuban brand’s name.  The Court did, however, order that enforcement of the injunction be delayed until General Cigar has a chance to appeal this part of the judgment.  What makes this decision noteworthy is that the U.S. Court has seemingly indicated that a foreign company has common law intellectual property rights in the U.S. even if it is not selling goods here.

As a Libertarian, I strongly believe in the rights of the individual.  A recent Ohio Supreme Court decision made me smile.  In State v. Smith, Slip Opinion No. 2009-Ohio-6426, the Court held that a police officer cannot search someone’s cell phone contents without a warrant unless the officer’s safety is in danger.  This is an important protection for those of us who keep much of their personal information on their cell phones.  It is possible that this case will be appealed to the U.S. Supreme Court which could result in a different ruling.  As always, a police officer can search the contents of your phone if you give the officer your permission.  In a world where our privacy rights seem to be shrinking every day, I’m glad that some Court’s are still upholding our Constitutional rights.