Emerging Litigation Podcast

Trademarks, Copyrights, Brands, T-Shirts, and Champagne with Tiffany Gehrke and Kelley Gordon

• Tom Hagy • Season 1 • Episode 89

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Listen as intellectual property attorneys Tiffany Gehrke and Kelley Gordon of Marshall Gerstein in Chicago share their insights into three matters relevant anyone watching copyright and trademark law, or anyone fond of branded t-shirts and fancy French beverages. 

I talk to Tiffany Gehrke about two cases. One is Vidal v. Elster, better known as the “TRUMP TOO SMALL” case. Just decided by the Supreme Court, this deals with whether a mark containing criticism of a government official or public figure – which is barred by the “names clause” of the Lanham Act – violates free speech. Justice Thomas wrote the majority opinion, which Tiffany outlines. 

The other case is Penn State v. Vintage Brands, which is pending in Pennsylvania federal court and is expected to have wide-reaching implications for retailers and brand owners alike. Vintage Brand uses Penn State’s registered Nittany Lions trademarks on t-shirts, hats, and other goods, and argues that use of the trademarks constitute a defensible “ornamental use.” We shall see!

Finally, I ask Kelley Gordon for her take on a dispute between a popular Instagram influencer, Lauren Holifield, and champagne brand Veuve Clicquot. Holifield temporarily and surprisingly lost her IG account after Veuve Clicquot raised trademark infringement concerns on three of Holifield's videos. This was a big deal for her. She was earning six figures. OMG. Hear what Kelley has to say.

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This podcast is the audio companion to the Journal of Emerging Issues in Litigation. The Journal is a collaborative project between HB Litigation Conferences and the vLex Fastcase legal research family, which includes Full Court Press, Law Street Media, and Docket Alarm.

If you have comments, ideas, or wish to participate, please drop me a note at Editor@LitigationConferences.com.

Tom Hagy
Litigation Enthusiast and
Host of the Emerging Litigation Podcast
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Speaker 1:

Welcome to the Emerging Litigation Podcast. This is a group project driven by HB Litigation, now part of Critical Legal Content and VLEX Companies, fast Case and Law Street Media. I'm your host, tom Hagee, longtime litigation news editor and publisher and current litigation enthusiast. If you wish to reach me, please check the appropriate links in the show notes. This podcast is also a companion to the Journal of Emerging Issues in Litigation, for which I serve as editor-in-chief, published by Fastcase Full Court Press.

Speaker 1:

Now here's today's episode. If you like what you hear, please give us a rating. So a lot of our discussion today well, practically all of it deals with t-shirts and champagne bottles, because you never know where emerging issues and litigation are going to come from. This episode has three parts, three and our guests talk to me about three cases. To line up with. Those parts be of interest to trademark and copyright attorneys, as well as entrepreneurs, product makers and sellers, brand owners and even social media influencers, which is something I'm counting on for my retirement, because who needs a 401k? My guests are too impressive, if I can say that's Chicago-based attorneys and I do mean it and they both coupled their legal education with scientific degrees, as attorneys in their profession often do. Well, the good ones they are Tiffany Gerke and Kelly Gordon, both with Marshall Gerstein. My intro won't do them justice, so I urge you to click on their bios and learn more about them. They put me to shame and generally make me feel like I've been an underachiever my entire life. But this isn't about me. Tiffany Gerke is a partner and chair of Marshall Gerstein's Trademarks and Copyrights Practice Group. She has her JD from Loyola University, chicago School of Law, and she has her computer science engineering degree from the University of Michigan. Kelly Gordon is also a partner at the firm, received her JD from the University of Illinois, chicago School of Law, with a certificate in intellectual property. She has a master's in art history and visual culture from the American International University in London and she has a BA in cognitive science from Indiana University. So Kelly mixes in knowledge of art into her understanding of the world.

Speaker 1:

I get to talk to Tiffany Gerke about two cases. One was just decided by the Supreme Court. It deals with whether a mark containing criticism of a government, official or public figure one you've heard of that's something that's barred by the names clause of the Lanham Act and whether the criticism of the mark violates free speech. That case is called Vidal v Elster, better known as the Trump too small case. That's a controversial slogan. I think we're safe in saying that it's also accompanied by a hand gesture. The entrepreneur in that case was trying to put this on some T-shirts and other apparel. So let's see what Tiffany can tell us about that.

Speaker 1:

The other case Tiffany talks about is expected to have pretty wide-reaching implications for retailers and brand owners. That is the Penn State versus Vintage Brands case. It's pending in Pennsylvania federal court. Vintage Brands uses Penn State's registered trademarks on t-shirts, hats and other goods. It argues that the use of trademarks constitute a defensible quote ornamental use, something Tiffany talks about. She describes the issues there very well.

Speaker 1:

And third, we get Kelly Gordon to share her insights into copyright disputes that arise between big brands and social media influencers. In the case we discussed, the social media influencer got the attention of a big champagne company whose name I can't pronounce but you will see Kelly can which effectuated a social media takedown of her pages. She was generating six-figure income there, so that's a big deal for her. Well, it was, and that's a warning to other influencers out there and you know who you are. So three interesting cases in a single episode of the Emerging Litigation Podcast. It says you're not getting your money's worth. And now here is my conversation with Tiffany Gerke and Kelly Gordon of Marshall Gerstein. I hope you enjoy it. Tiffany Gerke and Kelly Gordon, thank you very much for talking with me today.

Speaker 2:

Happy to be here.

Speaker 1:

So the first case we're going to talk about is Vidal v Elster, that's better known as the Trump too small case, which is a slogan that was going on t-shirts and hats, and this deals with whether denying registration of a mark under the Names Clause of the Lanham Act containing criticism of a living government official or public figure using their name without permission violates the Free Speech Clause of the First Amendment. So the PTO and I've learned all of this from you the PTO denied the applicant, steve Elster, registration of the mark. As I said, he wanted to sell hats and t-shirts with that slogan with an illustration of a hand gesture. So I think we can imagine what that is.

Speaker 1:

The trademark trial and appeal board affirmed Steve appealed to the federal circuit claiming his free speech rights were being violated. Federal circuit agreed with him, but on June 13th 2024, justice Thomas wrote a majority opinion responding to Steve's claim that blocking his trademark denied him his First Amendment rights. The justice wrote we hold that it does not violate his rights. So, tiffany, can you give us a little background, correct anything I might have said and also explain what the NAMES Clause is in the Lanham Act?

Speaker 2:

Sure. So the NAMES Clause prohibits registration of a trademark that includes the name, portrait or signature identifying a particular living individual without their consent. So the key aspects there are that the person is alive and that it's a particular individual that is identified.

Speaker 1:

So is there anything more? What other relevant facts are there in this case? Any that you find particularly interesting or different from other cases like it?

Speaker 2:

that you find particularly interesting or different from other cases like it? Sure. So in this case the applicant was trying to register Trump too small, as you noted, with t-shirts, hats and clothing to use as a source indicator for those t-shirts, hats and clothing. And you know, previously the Supreme Court has struck down two trademark clauses we'll say as being unconstitutional for violating the First Amendment, and so this case was sort of a third test of that in recent years.

Speaker 1:

What can you tell us about the previous two cases?

Speaker 2:

In one case the applicant tried to register the mark the slants for his band. The examiner said no, you cannot register that because there was a prohibition against marks that were disparaging in the Trademark Act and the examiner said that term can be considered disparaging, therefore we're not allowed to register it. Basically, it got all the way up to the Supreme Court and they said no because you are imposing although it is a content-based regulation you are imposing someone's viewpoint or opinion to determine whether or not it could get registered. So they said, because it was viewpoint-based and you had to have somebody's viewpoint of whether or not it was disparaging, that was unconstitutional.

Speaker 1:

Excellent. Then there was another case.

Speaker 2:

The second case was the Brunetti case a couple of years ago, had a similar concept in there, but it had to do with whether or not it was obscene, offensive, scandalous, and it was someone's viewpoint of whether or not it qualified as those things. So the Supreme Court said nope, that's unconstitutional, you can't regulate that.

Speaker 1:

Well, I feel innocent. I had to think about why that first one was disparaging. Took me a full minute.

Speaker 2:

And I was going to say so. What makes this one different, though, is that the names clause, so it's also content-based. Right, it's looking is there a name in this trademark? Okay, yes or no. And then it's looking do you have that person's consent? Right, okay, yes or no? And then it's looking do you have that person's consent?

Speaker 1:

Right.

Speaker 2:

It's not looking at whether it's a favorable use of the name, a neutral or a negative use of the name. It's purely looking whether or not it's a name and if you have their consent. So for that reason they said it's viewpoint neutral, versus the previous two that were viewpoint discriminatory.

Speaker 1:

So what are your thoughts on the various holdings in the case?

Speaker 2:

So the PTO, to me, did exactly what we expected. You know, they looked at the letter of it, said it had a name in it, it was a particular individual, no consent, we can't. We can't allow this forward. So I think that part was fairly predictable, that that was going to happen. And same with, you know, at the examiner level and at the board level, the TTAB, when it got to the federal circuit. What I thought they did was kind of interesting.

Speaker 2:

So their approach sort of started with a premise that, you know, free speech and the ability to publicly criticize or praise government officials is essential right to our society and to the First Amendment officials is essential right to our society and to the First Amendment.

Speaker 2:

So they looked at that under a right of privacy and a right of publicity, specifically looking at President Trump, since it was his name that was in this clause or in this proposed mark, excuse me. And they said, okay, first looking at the right of privacy. So does the government basically have any interest in in protecting the privacy of President Trump? And they said, you know, based on him being the president, it's arguably the least private name in American life was, I believe, their quote. And and so they said you know, no, basically there's nothing there that that would justify this.

Speaker 2:

Then they went on to the right of publicity and at this part they looked and said, OK, there might be a government interest here, where the mark involves copying or misappropriating from an existing mark and preventing the issuance of marks that falsely suggest an individual, including the president, have endorsed a particular product or service. So that starts to lean one way, towards the government interest. But then they went back the other way and said looking at this mark as a whole, there's no plausible claim that anyone could think that President Trump was endorsing this product based on this trademark.

Speaker 1:

Yeah, pretty unlikely.

Speaker 2:

He's not going to endorse that. I think we can all agree on that. I think we're safe.

Speaker 1:

Yeah, I think we're safe. I think we can all agree on that. I think we're safe.

Speaker 2:

Yeah, I think we're safe, Then the federal circuit basically as a whole said the government does not have sufficient interest to restrict this particular speech and therefore it was unconstitutional.

Speaker 1:

Well, I think we stumbled onto something we can all agree on. Trump's name is well known. We found neutral ground. We did Good for us. The other thing that was just occurring to me was I guess it was strictly, they were talking about him as president, not his Trump organization, I guess. Right, right, because that's certainly a brand everywhere.

Speaker 2:

Yeah, in this context that I was just talking about, they were, although throughout the procedural history of this matter, there is some discussion about the fact that he has Trump registered with multiple things, including shirts and hats and clothing type items.

Speaker 1:

Everything steaks hotels, casinos. We have a lot of them around here. My wife used to work for him in the 80s or not for him worked at the Trump Plaza Casino Hotel. So we have we still have towels and letter openers Since, since we started talking about this case, the Supreme Court ruled.

Speaker 2:

Yes.

Speaker 1:

So can you tell us about that?

Speaker 2:

So a couple of things. So one thing I want to kind of start with is the framework that the Supreme Court started with in their opinion and sort of what colored a lot of the analysis, at least in the majority's opinion. I'm not sure that they laid the framework in the way that I would have liked to see it be put through, and what I mean by that is they flipped to me the presumptions about trademarks. So in the Lanham Act the opening line is like no trademark shall be refused registration unless right, I abbreviated a little bit there, but that starts to me with a default Okay, we're gonna allow it to register unless you hit these exceptions, and one of those exceptions being the names clause. But the Supreme Court's opinion phrases it as you can get a federal registration only for marks that meet certain criteria. So to me that slight change in wording really indicated how they're going to talk about this and the perspective of this, because they're starting from the opposite perspective.

Speaker 2:

The second thing that they did that I don't necessarily agree with is they said trademark rights are primarily a matter of state law. I also don't believe that's true. I think maybe a long, long time ago it was, but the reality is, with the Lanham Act that's been around for, I think, almost 60 years at this point, and the way interstate commerce is today and has been now for a long time, it's absolutely a matter that goes across the entire United States. So I thought, by those two aspects that they kind of folded into their framing of the background and the analysis they were going to do, I thought were a little bit off. I don't know if necessarily getting those right would have changed their outcome, but for me I viewed it as an indication that they maybe weren't quite understanding the full scope of what was at play here.

Speaker 1:

For those who are unfamiliar what is the appellate path trademark cases take from district courts?

Speaker 2:

If it's a trademark matter that comes through the TTAB, like this one did, it can go up through the federal circuit. If it was, for example, here in the Northern District of Illinois, it would get appealed up to the Seventh Circuit. Unless it was also involving, for example, a patent matter, Then it would go with. It would stay with the patent matter to the federal circuit.

Speaker 1:

How the majority came at the thing sounds counter to how you believe that, or you say that the law is written, you say it's introduced with. You know, no trademark shall be refused, and so that was one thing, and the other thing was whether it's a state controlled area of law or federal, and they seem to. They didn't contact you, I guess, in advance.

Speaker 2:

No, they sure didn't no.

Speaker 1:

Maybe they should have. We can put that in.

Speaker 2:

Well, ultimately, though, as I said, I don't know if it would have impacted the results, but I thought it was worth mentioning.

Speaker 1:

What's your opinion of the Supreme Court ruling? Is it consistent with precedent?

Speaker 2:

So I don't necessarily think it's consistent with precedent, but I do think they reach the right results in this instance.

Speaker 1:

All right. So, as has been happening frequently these days, the justices are almost having a public conversation about their decisions. So Justice Thomas made the point of saying how this is a narrow decision. They don't set forth a comprehensive framework for judging whether all content-based but viewpoint-neutral trademark restrictions are constitutional. Nor do we suggest that an equivalent history and tradition is required to uphold every content-based trademark restriction. But in the end, he said, in future cases we can't address the distinct question whether a viewpoint-neutral, content-based trademark restriction is constitutional without such a historical pedigree. Justice Thomas did address criticism from Justice Sotomayor and Justice Barrett. Like you, they concurred with the outcome that the Names Clause does not violate the First Amendment, but not the path they took to get there. So what did Sotomayor and Barrett say?

Speaker 2:

So they both gave some pause to this notion of relying purely on history for how to apply it in this situation, and then found other ways to reach the same conclusion, using more traditional methods, like, whether you know, looking at different levels of scrutiny or looking at other contexts in which federal laws have been challenged that may arguably have similar characteristics to this one.

Speaker 1:

So what impact do you think this decision is going to have, and on whom?

Speaker 2:

I think the main impact on this is going to be on brand owners, and I think that the Supreme Court didn't necessarily appreciate, at least in the written part of their opinion, the practical implications of what having a federal trademark registration does for a brand owner.

Speaker 2:

They mentioned a few things.

Speaker 2:

Like you know, you get a legal presumption of ownership and you get nationwide constructive notice to others, but the things that they didn't mention are how those registrations are used in commerce.

Speaker 2:

So, for example, in the you know the internet world that we live in, there's a lot of shopping online. If you're trying to enforce your mark in multiple third-party marketplaces, you need to have a registration to establish your rights, to follow the procedures that those marketplaces may have to stop counterfeiters and infringers. And there's other ways that you can use your registration, sort of quicker, faster and more effectively than you would be able to do at common law. And while common law rights are absolutely important and can be the basis of many things, I don't mean to pretend that they're not worthwhile. They absolutely are. I thought that the court glossed over the impact on someone that is trying to get a federal registration, can't get it and is going to go to the marketplace. It's going to be harder for them to stop others than it would be if they had a federal registration, so I think that's who's going to be impacted the most.

Speaker 1:

Maybe a subject for another day is I'm always interested in how IP is protected globally.

Speaker 2:

Yes, Well, one thing that a federal registration. You can use it as a basis for registration and multiple other or an application or registration, I should say, in other jurisdictions, and you can't usually do that with common law. So that's another benefit actually.

Speaker 1:

I stumbled into a good question. You sure did. That'll be the first, maybe the last today. So what best practices would you well for brands or anyone else, what guidance or best practices would you like to share?

Speaker 2:

I think that generally, if your mark is eligible for a federal registration, you should generally get it. If you're gonna be using the mark over state lines, so in interstate commerce or online, the registration is a very powerful tool.

Speaker 1:

So go for it, go for it. Well, good, we're all about brands today, so let's go to the next one Penn State versus vintage brands. Now, is this still pending?

Speaker 2:

It is yes Okay.

Speaker 1:

In Pennsylvania in federal court in Pennsylvania. It's going to have wide-reaching implications for retailers and brand owners. You anticipate wide-reaching implications for retailers and brand owners. You anticipate vintage brands uses Penn State's registered trademarks on t-shirts, hats and other goods. See the law of t-shirts and hats. Seems to be it's everywhere.

Speaker 3:

It is, it really is.

Speaker 1:

My t-shirt. I never have anything on mine. They use their trademarks on hats and other things and it argues that the use of trademarks constitutes a defensible ornamental use. This is vintage brands argument, so what does that mean?

Speaker 2:

So ornamental use basically means that it's a decoration, it's a feature or a design that may be part of, for example, a t-shirt, but it's not necessarily a source indicator, right? So often you might think of ornamental use as what you see on the front of a t-shirt, like the design and the source indicators, the tag of who sold it to you.

Speaker 1:

All right. What's an example then, do you? Have a picture of a tiger, a lion.

Speaker 2:

Sure, as long as it's not a Nittany Lion.

Speaker 1:

Because they have a very specific look.

Speaker 2:

Yes, so I could give you an example from this case.

Speaker 1:

If that would be helpful.

Speaker 2:

Sure. So vintage brands had sales on their website, many t-shirts for various colleges, college university sports you know things that people want to have be fans of, for a general way to describe it, and on their website you can buy a shirt that has a picture, a word and sometimes an actual, like trademarked logo of the university or team that they want to show their support for. And so in this case the Penn State case the vintage brand company was selling historical Penn State images. I believe that they bought old stuff, scanned what the image used to look like and then put that on the T-shirts. Some of those designs Penn State has registered at the USPTO and has for a long time. Some of them are not registered.

Speaker 1:

This is a side question for me. Do trademarks expire?

Speaker 2:

They do, but you can renew them indefinitely. So every 10 years you can renew them, and as long as you are using them in commerce, you can keep protecting them.

Speaker 1:

And then the court ruled on dueling motions for summary judgment and it's going to head to trial right.

Speaker 2:

They were denied and it's set for trial in November.

Speaker 1:

currently, how will this impact retailers and brand owners, I guess, depending on which way it goes, of course?

Speaker 2:

Yes, impact retailers and brand owners, I guess, depending on which way it goes, of course, yes. So right now, the licensing industry is watching this case closely, particularly those that work with teams and universities, because fans love to buy gear for their favorite teams. Right and under the current model, the university, the team, whoever the trademark owner is, has a very lucrative usually licensing deal with these entities that make the t-shirts, that make the hats and the other things, and if this case goes in vintage brands' favor, then it will potentially create a windfall of people to create gear for their favorite teams without having to pay licensing costs for it.

Speaker 1:

It must be lucrative, like you said, because people are bananas for their teams.

Speaker 2:

Exactly yes.

Speaker 1:

Depending on the outcome, what would be the impact on counterfeiting claims?

Speaker 2:

So it would be a lot harder to enforce your mark against those that are not authorized to create merchandise on your behalf, because if they are able to do what Vintage Brand did, then they too would be able to continue to sell their things. There would have to be some other factor that you would be relying on to enforce your mark against them, and that's also kind of where the distinction comes in between source indicator and ornamental use. Ornamental use just might mean hey, I'm a fan of this team, that's all I'm trying to say here, whereas source indicator may be. I'm a fan, and I have purchased this from someone that is affiliated with and endorsed by or sponsored by the university.

Speaker 1:

How do you think it's going to go? Do you do the predictions?

Speaker 2:

I may not be right, but I think Penn State is probably going to be successful in this one.

Speaker 1:

And that's because why.

Speaker 2:

I think that there is, to use the Supreme Court's reasoning there's a lot of history. If this case goes against Penn State, I think it will significantly harm brand owners because it will make it much harder for them to enforce their mark against others and receive licensing royalties for their brands.

Speaker 1:

So do you have any guidance at this point for retailers and brand owners?

Speaker 2:

So, yeah, if you're the retailer and you want to be like a vintage brand, I think instead, whatever you're going to make, you need to make sure that you are clearly not so close to what the university or team has that you would be mistaken for being affiliated with them, or get the license, and then you can be covered for what you need to do.

Speaker 1:

We'll come back to you when they come back with a verdict. Need to do. We'll come back to you when they come back with a verdict. All right, well, moving on to another brand issue. So, kelly, we're going to go over to you. We've got a brand versus social media influencers and you were recently quoted in a Wired article. That makes you cool so far today. I want to be quoted in Wired someday, apparently. So you commented on dispute between an Instagram influencer named Lauren Holyfield. She lost her account after now. I don't even know how to say this. After a champagne brand, is it Veuve Clicquot? No, I can't say it.

Speaker 3:

How do you say it Veuve Clicquot?

Speaker 1:

Oh my God, those French Veuve, kiklo, kiklo, kikli-ko. Okay, fine, they filed a trademark infringement claim on three of the influencers' videos and this was a big deal for her, because she was generating a lot of six-figure income marketing products to more than 100,000 followers, so that's good for her. When she found out that she was banned, that income was shut down. So what can you tell me about the facts of the case? You know, was she warned? What was she doing, decorating bottles? What can you tell us?

Speaker 3:

It was not necessarily a trademark infringement claim that we would traditionally think of in court. This was a social media takedown request that was initiated by the brand owner. I haven't seen the actual videos because, of course, they have since been removed, but my understanding is that she was perhaps doing some decoupage or some sort of to borrow a term from Tiffany's discussion ornamental decorations to a Vov Kiko champagne bottle and what I would assume was the case. Again, I haven't actually seen the bottles that she decorated, but my assumption is that the distinctive labeling and color the yellow-orange color that Vogue Kiko is known for and actually has a registered trademark on just the color itself in connection with champagne was still visible on the bottles themselves. So she posted some of these videos to her Instagram account. Haven't seen the videos themselves.

Speaker 3:

When I did do a quick internet search for her name plus Vogue, there seems to be a sort of a ghost lingering hyperlink out there to perhaps one of her previous Instagram posts where some of the content shows up that might have been from the original, one of the original captions from the posts that indicates if you comment champagne on my post, I will send you a direct message with the information on the materials that I used to decorate the bottles. In a nutshell, that sounds like what sort of initially gave rise to the takedown request, and from public statements that she has made, it sounds like she was forewarned about the takedown request, but I guess the hitch for her was that it went to sort of a secondary email account that she wasn't monitoring necessarily, so at the time that her account was deactivated it was technically a surprise to her. It sounds like the old.

Speaker 1:

I didn't check that email account.

Speaker 3:

Right.

Speaker 1:

I would have gone with spam, but that's okay. So was she able to rectify the situation?

Speaker 3:

So she was. It sounds like she hired a third-party marketing consultant that helped her get her account back online.

Speaker 1:

Did she have additional repercussions as a result of this? Because I think I saw it in the article where you're quoted impact on her future work income from advertisers.

Speaker 3:

So I'm not sure if there was any actual impact on future work once her account was back online. I think in the particular Wired article she did sort of have some questions as to whether it would impact things, and I think some of it was sort of hypothesizing how long her account would be down for and, of course, if it had been a permanent removal of her account, how that would impact her earnings.

Speaker 1:

But what questions does this raise in your mind about copyright, ip, trademark protection as influencer, marketing increases.

Speaker 3:

Yeah.

Speaker 3:

So this particular instance, I think it raises what I call a triple whammy of issues.

Speaker 3:

First of all, the brand that's at issue is a luxury brand and it is, I would say, arguably one of the iconic champagne brands where protection of that brand that has already garnered and established so much value in and of itself, of course, a brand owner like that is going to be particularly incentivized to be protecting how that brand is used and by whom, and if such use is likely to confuse consumers into believing that there is some sort of sponsorship or affiliation or approval with a third-party use of their brand. Not only that, but it's an alcohol brand, so it's a highly regulated industry right which raises its own set of issues. Alcohol brands have regulations in terms of what type of content can be released in connection with the brand, of course, the age restrictions that apply. For example, there's certain regulations that you can't have advertising that's likely to be appealing to those under 21, of course. So there's historical cases about alcohol brands using puppies or dogs that might be considered appealing to, of course, children, which is not ideal.

Speaker 1:

Mickey Mouse throwing down some Pinot Noir.

Speaker 3:

Right Probably not ideal. And then thirdly, of course, it's an influencer. It's being used by an influencer on social media and I think what we will end up seeing likely is more regulation. I think it's still an area of development where, so far, we have seen a number of changes and requirements, of course, where influencers who are posting content online, if it is sponsored, they have to use something like hashtag ad at the beginning of the posts and things like that.

Speaker 3:

In this particular instance, of course, ms Holifield's position was that it, of course, was not a sponsored post. She wasn't selling anything, but at the end of the day, she is still a social media influencer and whether or not she was actually selling something as a result of that individual post, the entire purpose and character of her social media presence is ultimately to be influencing consumers to be making certain purchasing decisions and, at the end of the day, I think Vovkiko was very well within their rights to submit the takedown request. How does that differ from reviews? If I had a wine, I think Vovkiko was very well within their rights to submit the takedown request.

Speaker 1:

How does that differ from reviews? If I had a wine I don't know God forbid I was a wine influencer that would be widely used, but you're on there to say here's the best one of the year, this one is the worst. I mean, how does it differ?

Speaker 3:

There's an overlap there, certainly. Still, if you are posting from quote unquote a wine influencer's account, there's something called nominative fair use, which is you can accurately refer to a brand by its name. That's not considered infringement. But if you are an influencer posting certain content, I think the underlying ripple effect there and implication for consumers that of questions as to at what point does an influencer need to actually disclose. I received this free bottle of wine from this brand owner. Are they required to disclose? This content is only for 21 and over, things like that, and so that's why I think we will end up seeing some more regulation in this space.

Speaker 1:

Okay, when you use the word ripple, was that a product placement?

Speaker 3:

that, and so that's why I think we will end up seeing some more regulation in this space when you use the word Ripple was that a product placement?

Speaker 1:

No, I actually don't. I can't think of a brand named Ripple. Oh, that is so good to hear, because at my age Ripple I laughed when you said Ripple because that was a really cheap wine that teenagers would drink and it was horrible.

Speaker 3:

No way, that's great.

Speaker 1:

The fact that she was doing decoupage, which is also French, that didn't influence them into saying nevermind, say I want to launch, I want to be a wine influencer. What would you, what advice would you give?

Speaker 3:

I would say that permission is key If you are going to be working in the influencer space, researching the regulations, making sure you have the correct guidance, you're adhering to any of those disclaimers in terms of whether it is an advertisement, whether it's been gifted, whatever the regulations are currently what they may end up being Doing. That research before posting the content I think is paramount, especially the regulations are currently what they may end up being doing. That research before posting the content I think is paramount, especially if you are going to be prominently featuring a third-party brand in your content.

Speaker 1:

Should they call you?

Speaker 3:

Absolutely.

Speaker 1:

This is not attorney advertising nor does this establish an attorney-client relationship. Well, what about the brands themselves? I guess it must be that big brands must have teams of people out there just doing nothing but scouring for misuse.

Speaker 3:

I'm sure it certainly depends on the brand. Some brands do employ third parties that help them with reviewing some of the content that is out there. I think sort of one of the takeaways from this particular dispute that the influencer had that was also outlined in the Wired article is that probably communication is key. I understand the influencer had some sort of source of frustration with the social media platform trying to get her account back online. Every platform is different. For example, youtube has sort of a three strikes and you're out policy. If they receive three copyright complaints against your YouTube channel for content that you're not permitted to use, they'll shut down your YouTube channel. You need to be aware, of course, of the regulations, the rules obtaining permission, making sure that you have that permission before you're posting the content. But from the platform's perspective, ensuring that you're communicating that to the users of your platform clearly and having that two-way communication in order to rectify situations, that if there is something that can be worked out amicably, sometimes that's the best resolution you can ask for.

Speaker 1:

Always Okay, guys. Well, thank you very much. Great to talk to you, Great to meet you both.

Speaker 2:

You as well, thank you.

Speaker 1:

That concludes this episode of the Emerging Litigation Podcast, a co-production of HB Litigation, critical Legal Content, vlex Fast Case and our friends at Lostry Media. I'm Tom Hagee, your host, which would explain why I'm talking. Please feel free to reach out to me if you have ideas for a future episode and don't hesitate to share this with clients, colleagues, friends, animals you may have left at home, and if you feel so moved, please give us a rating. Those always help. Thank you for listening.