Hunton Retail Law Resource

Recently, in Mission Product Holdings v. Tempnology LLC, the Supreme Court held that a trademark licensee may continue using a licensed trademark after its licensor files for bankruptcy and rejects the relevant license agreement. While a debtor-licensor may “reject” a trademark license agreement under Section 365 of the Bankruptcy Code, such rejection is only a breach of the agreement and does not allow the licensor to revoke the licensee’s rights. Click here to read the full alert.

A federal court in Pennsylvania has held that Liberty Mutual must defend its insured, Hershey Creamery Company, in an intellectual property infringement lawsuit because the suit raises claims that potentially implicate coverage under the policies’ personal and advertising injury coverages. The court further found that the alleged wrongful conduct was not subject to the policies’ IP infringement exclusion.

The CPSC this month issued notices to multiple consumer product companies explaining that the CPSC “recently discovered that nonpublic manufacturer information identifying your company by name along with product model name and/or model number was released in error to the public without following the procedures of 15 U.S.C. § 2055,” which provides procedures for and restrictions on the Commission’s public disclosure of manufacturer and product-specific information. The notice offers few details about the unauthorized disclosure’s nature or scope, raising questions about whether the released data comes from inspections, product safety investigations, recalls, consumer safety complaints or other possibly confidential or commercially sensitive information. This kind of disclosure may have a chilling effect going forward on the candor encouraged between the CPSC and regulated companies by Section 6(b) of the Consumer Product Safety Act.

As reported on the Hunton Employment & Labor Perspectives Blog on May 14, 2019, Massachusetts’ highest court, The Supreme Judicial Court (“SJC”), recently issued its long awaited decision in Sullivan v. Sleepy’s LLC, SJC-12542, in which the SJC responded to certified questions of first impression from the United States District Court for the District of Massachusetts.

Introduced by the architect of California’s existing paid sick leave law, AB 555 would expand paid sick leave to require employers to provide 40 hours, or 5 days, of sick leave by the employee’s 200th calendar day of employment. Additionally, employers are only able to cap the amount of paid sick leave a worker earns to 80 hours, or 10 days. Finally, the employer is required to allow an employee to carry over up to 5 days of sick leave into the following year of employment. This proposed amendment would necessarily have a negative impact on California retailers, both large and small. The bill and its amendments can be found here.

A recent successful effort by a public company to exclude an environmental proposal from its proxy statement may signal a new approach for boards of directors to consider when managing shareholder proposals. Because retailers and consumer products companies routinely receive shareholder proposals on environmental and sustainability issues, similar arguments for exclusion may be persuasive to the staff of the Securities and Exchange Commission (SEC) in the future.

Nautilus Inc., which owns exercise brands like Nautilus and Bowflex, and ICON Health & Fitness, which owns NordicTrack among other exercise brands, have been battling over intellectual property for years. ICON recently upped the ante by bringing a complaint to the International Trade Commission, seeking to exclude all imported Bowflex exercise machines from entry into the United States.

On April 17, 2019, the United States Environmental Protection Agency (EPA) issued a final “significant new use rule” (SNUR) prohibiting over one dozen uses of asbestos from returning to the marketplace without EPA review and approval.

The National Advertising Division (“NAD”) has recommended that Goya Foods, Inc. toss claims that its Excelsior brand pasta is “Puerto Rico’s Favorite Pasta,” following a challenge by Goya’s competitor, Riviana Foods, Inc. Riviana, the maker of Ronzoni pasta, argued that Goya had not substantiated its “favorite” claim through consumer survey or sales data. Goya responded that its claim was classic puffery. NAD disagreed with Goya, finding that “favorite” is objectively measureable and means a product is preferred over all others. NAD ...

The U.S. Department of Justice announced major news in the world of consumer products this month. A federal grand jury recently indicted two corporate executives for their roles in an alleged scheme involving residential dehumidifiers. The executives were charged with conspiracy to commit wire fraud, conspiracy to defraud the CPSC, and failure to furnish timely information under the Consumer Product Safety Act.