This week we highlight three writers discussing timely subjects in privacy and trademark law. Brandon Vigliarolo wrote in TechRepublic about Google’s new app privacy standards; Sarah Pearce from Cooley wrote a practical guide to the EU’s General Data Protection Regulation that includes a 6-month compliance plan; and Scott Hervey posted a piece on the IP Law Blog analyzing whether there was trademark infringement under an interesting situation involving a strain of pot.
Google’s new app privacy standards mean big changes for developers
In TechRepublic, Brandon Vigliarolo wrote about Google’s new app privacy standards that will begin on January 30, 2018. At the forefront, app developers will need to explain what data is being used, how it is used, and when it is used – and get user consent. Vigliarolo anticipates that most developers will need to make changes to their app design in order to comply with the new standards. In addition, any transmission of data (even in a crash report) has to be explained and accepted by the user. While Vigliarolo writes that it is not completely clear how Google will enforce these standards, beginning at the end of January users will be given warnings if an app (or a website leading to an app) is known by Google to collect user data without consent. Non-compliant developers could see lower ratings and less traffic.
Mr. Vigliarolo provides links to additional resources from Google about what to do if you are found to be non-compliant.
What we like: Google’s new policy adopts many common privacy principles and is a significant industry effort to protect customer information. We like the Vigliarolo’s direct and easy to follow writing style, but we particularly agree with his advice not to be caught unprepared and that non-compliance could cost the app developer.
GDPR: Ready or Not, Here It Comes…
Sarah Pearce from Cooley wrote a thoughtful and useful guide to help companies get ready for the EU’s new General Data Protection Regulation (GDPR). The GDPR goes into effect on May 25, 2018 and, as Pearce explains, it will “radically change the use and flow of data worldwide.” At the time of her writing in December, according to Pearce, 86% of companies were not ready for the new rules to go into effect and over 60% had not even started getting ready.
Pearce discusses some basic questions about the GDPR, such as what it is, how to determine if it applies to your business, and what it means in practice. She explains that companies who do not consider themselves to have an EU “presence” may still need to comply. Organizations should think about whether they “process” EU data and whether that data is “personal data” of EU citizens or residents.
That bad news aside, Pearce explains that hope is not lost for companies that have not started to prepare and outlines a practical 6-month compliance plan leading up to when the rules go into effect. For example, to begin she recommends a number of tasks to raise awareness within your organization, including forming a GDPR team and engaging the Board of Directors or your company’s analogous governance group.
What We Like: Many companies are not adequately prepared for the GDPR and may not understand its scope. Pearce’s post concisely hits on the main issues companies need to be aware of, but we particularly like the 6-month plan. We also like the concluding sentence because it is a point frequently lost in this process: “In fact, compliance could, if properly managed, drive efficiencies for your business – and at the very least, facilitate the ability to leverage and monetize data as the valuable asset that it is.”
Would Glue Maker’s Trademark Claim Stick Against Pot Strain
In the IP Law Blog, Scott Hervey analyzes whether the “Gorilla Glue” trademark was infringed by a company called GG Strains, LLC, which marketed a new strain of marijuana it calls “Gorilla Glue #4.” The name comes from the fact that the new plant made the inventors hands “stick to things like Gorilla Glue.” The name also was used on merchandise and GG Strains filed for a trademark in Colorado. The Gorilla Glue Company found out and sued for trademark infringement and dilution. While the case settled prior to a decision, Hervey analyzed how the case may have turned out.
Hervey explains that the “likelihood of confusion” test determines if there has been trademark infringement under Section 43 of the Lanham Act. He examines whether there was a likelihood of confusion using the eight factors set forth by the Ninth Circuit Court of Appeals in AMF Incorporated v. Sleekcraft Boats, 599 F. 2d 341 (1979). Hervey concludes that Gorilla Glue may have had trouble succeeding on its infringement claim because of the differences in the two companies’ marks and the unrelated nature of the goods. Lastly, Harvey argues without much analysis and explanation that the company may have had better success with its trademark dilution claim.
What We Like: The 9th Circuit’s eight factor “likelihood of confusion” analysis – drawing on the same test from numerous other federal circuits going back at least to the 2nd Circuit’s Triumph Hosiery Mills case in the 1960s – is a good guide for individuals or companies contemplating bringing a trademark infringement claim, as well for individuals or companies contemplating various branding activities, and the topic of marijuana sales in Colorado is definitely current and made for a fun read. We also thought Hervey’s final admonition to the cannabis industry not to incorporate marks of other companies because the mark owners likely will not find it “clever” or “humorous” is good advice for any company that is thinking about incorporating another company’s name into its product.
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