Alerts

AD-ttorneys@law – March 30, 2020

Alerts / March 30, 2020

In This Issue:

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Don’t Panic, but Purell Just Got Sued Over Hand Sanitizer Packaging Claims

Class action follows FDA letter, hints at lawsuit pandemic to come

Headaches

Coronavirus news is saturating everything, and stress is harmful in and of itself. We’re keeping an eye out for Kardashian-related news just to keep everything normal.

For now, we’ll discuss a virus-related lawsuit that will be of interest to pretty much anyone.

Purity Test

Back in January 2020, the Food and Drug Administration (FDA) sent Gojo Industries a warning letter.

What’s Gojo, you ask? Well, if trends continue, it may soon become one of the most powerful corporations in the world. Gojo, you see, manufactures Purell-brand hand sanitizers.

The warning letter from the FDA concerned a few gel and foam products sharing the brand name of “Healthcare Advanced Hand Sanitizer.” The warning? “Based on claims on your product websites which also include links to webpages where these products may be purchased,” the FDA writes, “the PURELL® Healthcare Advanced Hand Sanitizers are intended for use as consumer and healthcare antiseptics.”

And that, according to the letter, pushes the products into “unapproved new drug” territory. The Healthcare Advanced Hand Sanitizers were being marketed, the FDA alleges, for “demonstrated effectiveness” against a variety of germs in healthcare, education and athletic environments.

“Your labeling claims that PURELL® Healthcare Advanced Hand Sanitizers are effective in preventing disease or infection from pathogens … and in preventing the spread of infection, go beyond merely describing the general intended use of a topical antiseptic as set forth in the above-referenced relevant rulemakings.”

The warning letter implied Gojo needs to correct its labeling or face the music.

The Takeaway

Enter Manal Aleisa, a California resident who claims to have purchased the hand sanitizers in question. Her suit, filed in the Central District of California shortly after the warning letter, relies on the FDA’s arguments to make her case. Or, to put a finer point on it, it basically repackages the letter in class-action format, down to the quoted advertising claims. She’s suing for violations of California’s Consumer Legal Remedies Act, False Advertising Law and Unfair Competition Law along with negligent and intentional misrepresentation.

The letter and the derivate suit were filed in January, and neither mentions the coronavirus at all – which inspires one overriding question: How many coronavirus-related lawsuits and investigations are on the horizon? In a time when consumers are looking especially closely at claims for health and sanitation products, it will be interesting to see how litigation trends will spike in the coming months and continue through this pandemic

Schwarzenegger Sues Robot Maker for Confounding Art, Life

Russian bot maker sued for right-of-publicity violations

Self-Aware

Honestly, this story is going to make our heads explode.

There’s just too much: too many opportunities for bad puns, too many chances to drop quotes from one of the great sci-fi cinema juggernauts of our youth, too many damn ironies. Period.

So, we’re going to try to rein it in and keep it simple. Here it is, in a nutshell.

Promobot, a company that creates “business service robots,” decided to demonstrate its skills by creating the “Robo-C”: a simulacrum of the upper body of Arnold Schwarzenegger in his most famous role as an implacable, deadly robot.

Now, brace yourselves. Here’s a clip of the Schwarzenegger homunculus in action, and it’s creepier than you might have imagined. Seriously – if that dead-eyed stare at 14 seconds in isn’t the harbinger of the end times, we don’t know what is.

So let’s bundle it up into a neat little package: A Russian robot company created a product that’s still stuck at the bottom of the uncanny valley, modeled on the disembodied torso and head of an actor playing a robot who, in the movies, impersonated humans in order to spread mayhem and destruction.

Is this merely a misguided marketing ploy? Or is that just what the robots WANT you to think?

Face-off

You have to wonder about Promobot’s thought process. Because in addition to modeling a murderous robot as the goodwill ambassador for what is essentially a concierge service, they were playing with the public image of one of the most recognizable celebrities in history.

According to the inevitable lawsuit, brought by Schwarzenegger’s business in Los Angeles County Superior Court in early March, Promobot tried to corner the superstar ex-governor into a side-by-side photo with the new robot during a trip to St. Petersburg back in 2019. Schwarzenegger was predictably horrified and refused to be pictured with his replacement model.

It’s not clear whether Schwarzenegger made a specific legal objection after the St. Petersburg incident, but in any case, “despite Schwarzenegger’s refusal to be photographed with the Robo-C bearing his likeness, and the fact that Defendants had no authorization to do so … Defendants subsequently used a model of the Robo-C bearing Schwarzenegger’s likeness again at a trade show called the ‘Consumer Technology Association’ on January 7-10, 2020 in Las Vegas, Nevada.”

My Mission Is To Protect You

This invasion of the United States market was enough to trigger a formal response, and Schwarzenegger sent a cease-and-desist letter to the company on Jan. 9. According to Schwarzenegger, the company replied, promising to remove the robot from the exhibition and the website.

Nonetheless, the suit alleges, Promobot “continued using the Robo-C bearing Plaintiff’s likeness at promotional events and trade shows,” including another fair in New York. Schwarzenegger’s team claims that “Defendants have plans to use the Robo-C with Schwarzenegger’s likeness at future events …”

(Just in case you want to hire an Arnold bot for a birthday party, we now have at least a floor-figure for what using Schwarzenegger’s likeness costs – “Schwarzenegger would never have approved [the use of his likeness for the robot] without a payment of at least $10,000,000.”)

The Takeaway

Promobot is being sued for misappropriation of the right of publicity, unjust enrichment and unfair business practices under California law. A special bonus for anyone out there who likes to dive headlong into legalia: Schwarzenegger’s attorney’s cease-and-desist letter, attached as an exhibit to the complaint.

Referencing an earlier $2.5 million courtroom win for Priscilla Presley, Schwarzenegger’s attorney writes, “That multi-million-dollar judgment was for a plaintiff who is far less recognizable to the public, and far less commercially valuable, than Mr. Schwarzenegger. Certainly in a situation such as this, in which you exploited the photograph of one of the most successful and renowned major motion picture stars in the world, without his knowledge or authorization, the damages awarded at trial would be increased exponentially.”

Priscilla Presley has not been reached for comment. This case serves as an interesting example of how the rights of publicity can reach stars of all calibers and continue to be important legal rights for celebrities to exercise in the growing bounds of enhanced technology.

Keith Haring Foundation Sues Over Rogue Robe

Fine art licensees, beware; you might get socked in court

Art for the Whole Tribe

Keith Haring’s art was many things – kinetic, iconic, and teeming with life and energy despite its simplicity. It was almost as if pop art had produced a modern version of the prehistoric cave painter; from subway scrawling to imposing murals, his work pulsed with meanings that seemed universally accessible, even if it was not universally admired.

Before his death in 1990, Haring produced a tremendous amount of art, much of which he reproduced and sold in portable form – clothing, for instance – through his privately owned “Pop Shops” in New York and Tokyo. His explicit aim was to make his art as accessible as possible. “I wanted to attract the same wide range of people [as he reached in the subways], and I wanted it to be a place where, yes, not only collectors could come, but also kids from the Bronx … ,” Haring said.

The Good Shepherd

The Pop Shops are long closed, but their spirit lives on – the Haring Foundation, which “supports not-for-profit organizations that assist children, as well as organizations involved in education, prevention, and care related to AIDS,” also “maintains and protects Keith Haring’s artistic integrity and legacy, including overseeing the reproduction of Haring Images and protecting its intellectual property.”

Thirty years after his passing, Haring’s oeuvre boasts a rare combination of ubiquity and distinctiveness. According to the foundation, this is an effect of the stringent approval process the foundation imposes on potential merchants and marketers.

And that brings us to the foundation’s recent lawsuit, filed against Gin&Tonic LLC, a New York-based company that entered into a licensing agreement with the foundation in 2018. The license allowed Gin&Tonic to “reproduce Haring Images on or in connection with lounge pants, underwear, socks, and robes only,” the complaint alleges. The complaint also outlines the draconian oversight that the foundation exercises over every aspect and stage of a licensed product’s development.

The Takeaway

Between 2018 and 2019, several of Gin&Tonic’s designs were filtered through the foundation’s approval process, with only one preproduction sample (a sock design) winning the necessary approval. According to the complaint, however, Gin&Tonic chomped at the bit, proposing designs that were outside the scope of the original agreement. The foundation’s representatives made clear that the new efforts needed to be approved as well.

Nonetheless, the suit claims, unapproved designs began appearing in stores, including Urban Outfitters and Fashion Nova locations. After unsuccessfully attempting to clarify the situation, the foundation filed suit in New York’s Southern District, charging Gin&Tonic with federal trademark infringement and counterfeiting as well as unfair competition and false designation of origin violations, copyright infringement, breach of contract, and related violations of New York state law.

If the foundation’s case is true, it presents an object lesson for anyone reproducing iconic artwork: Read the fine print and adhere to it.

Better yet, hire counsel to read the fine print and then adhere to it. Artists of Haring’s enduring popularity maintain their profiles through the strict exercise of conservative approval and design guidelines. If they didn’t, it wouldn’t be worth reproducing for very long.

Vermont’s Data Broker Law Swings From Theory to Practice

State AG takes aim at Clearview AI, a facial recognition company

Everything New Is Old Again

June 2018. Feels like a hundred years ago right about now, doesn’t it?

But a hundred years ago, back in June 2018, we reported on something that was legitimately new: a strong anti-data-broker law put into effect by a state government – in this case, the great state of Vermont.

The new law promised that a company “that knowingly collects and sells or licenses to third parties the brokered personal information of a consumer with whom the business does not have a direct relationship” would be subject to four provisions:

  • Minimum security standards for consumer data.
  • Elimination of fees for initiating and lifting credit report freezes.
  • Entry into a state-run registry that provides consumers with information about brokers, opt-out instructions and alerts when data breaches occur.
  • Legal penalties for fraudulent acquisition or improper use of brokered data.

Private Eyes

Enter Clearview AI, a facial recognition company profiled extensively in the New York Times earlier this year. Read the article – it’s a great one – but if you need a bottom line, here it is: Clearview has amassed a database of 3 billion images scraped from millions of sites and social media platforms and is selling the service to law enforcement organizations and major corporations.

The Takeaway

Vermont ain’t having it. The Green Mountain State filed suit on March 10 in Vermont Superior Court. The complaint is a barnburner and worth a read; the Vermont attorney general is tearing down multiple aspects of the technology and the business that Clearview has built up around it – including its inaccuracy, its inherent biases, the threat it poses to children, the moral character of its founder and multiple violations of privacy policies on social media sites.

Vermont brings multiple charges under Vermont law, including unfair acts and practices, deceptive acts and practices, and unlawful acquisition and uses of brokered personal information. That last charge is what’s new, brought under the state’s Fraudulent Acquisition of Data Law.

The battle has been joined, ladies and gentlemen. We’ll keep you posted on how it develops.

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