Amazon

'Amazon's Quiet Overhaul of the Trademark System' by Jeanne C Fromer and Mark P McKenna in (2025) 113 California Law Review comments

 Amazon's dominance as a platform is widely documented. But one aspect of that dominance has not received sufficient attention-the Amazon Brand Registry's sweeping influence on firm behavior, particularly in relation to the formal trademark system. Amazon's Brand Registry serves as a shadow trademark system that dramatically affects businesses' incentives to seek legal registration of their marks. The result has been a dramatic increase in the number of applications to register, which has swamped the U.S. Patent and Trademark Office and created delays for all applicants, even those that previously would have registered their marks. And the increased value of federal registration has drawn in bad actors who fraudulently register marks that are in use by others on the Amazon platform and use those registrations to extort the true owners. 

Amazon's policies also create incentives for businesses to adopt different kinds of marks. Specifically, businesses are more likely to claim descriptive or generic terms, advantageously in stylized form or with accompanying images, and to game the scope limitations that would ordinarily attend registration of those marks. And the same Amazon policies have given rise to the phenomenon of "nonsense marks" - strings of letters and numbers that are not recognizable as words or symbols. In the midst of these systemic changes, Amazon has consolidated its own branding practices, focusing on a few core brands and expanding its use of those marks across a wide range of products. In combination, Amazon's business model and Brand Registry have overhauled the American trademark system, and they have done so with very little public recognition of the consequences of Amazon's business approach. Amazon's impact raises profound questions for trademark law, and for law more generally. There have been powerful players before, and other situations in which private dispute resolution procedures have affected parties' behavior. But Amazon's effect on the legal system is unprecedented in scale and scope. What does (and should) it mean that one private party can so significantly affect a legal system? Do we want the trademark system to have to continually adapt to Amazon's rules? If not, how can the law disable Amazon from having such a profound impact? In this regard, we explore the ways in which Amazon's practices might both help and hurt competition, be harmful to the trademark system, and reshape how we think about trademark law at its foundation. 

Margo Bagley comments 

The Brand Registry Program rewards owners of federally registered trademarks with a cheap and efficient dispute resolution process, which both allows them to object to uses of their mark on the website and also gain a higher priority in search results than if their mark was unregistered. 

Fromer and McKenna identify at least ten impacts of Amazon’s program on the trademark system: Amazon 1) created a shadow trademark system that incentivized applicants to file for federal trademark registrations which 2) swamped, the PTO resulting in 3) significant delays for all applicants (plus a cluttered register) and opportunities for bad actors to 4) fraudulently register “in use” but unregistered marks and then 5) extort the legitimate owners (often small entities relying on traditional trademark priority rules) who would now risk losing the ability to sell goods on Amazon.  

In addition, the authors detail how Amazon’s policies led to a change not just in the magnitude of registrations but also 6) in the kinds of marks being registered, nullifying the effect of historical limitations on the registration of 7) descriptive and generic terms (bad actors can register them with the USPTO as stylized marks/use disclaimers, but Amazon’s Registry only matches text so those legal limitations are ignored) while also giving rise to a wide variety of 8) “nonsense marks” (if you’ve shopped on Amazon, you’ve seen them), strings of unpronounceable letters that have no meaning to consumers but qualify for Amazon’s registry which then favors them in search results. As the authors explain, “when search and purchase are not necessarily done by people who need to remember a brand name, businesses just need something to make the algorithm prefer them. Nonsense will do.” 

And if these externalities to Amazon’s Brand Registry Program were not bad enough, the company has simultaneously 9) elevated its own brands on its site so that one is more likely to see Amazon brands first in searches, even in searches specifically for other brands. This gives Amazon more power vs. third-party brands and 10) “decenters” branding by blunting the traditional source identification and search cost reduction benefits branding is designed to provide.

Parody

'The EU trade mark system’s lost sense of humour' by Sabine Jacques in (2024) 1 Intellectual Property Quarterly Journal 1 comments 

This article examines the use of EU registered trade mark signs by businesses, artists, advocacy groups, individuals, and politicians, with the aim of diverting these signs from their original meaning to create new expressions. Using empirical methods, the article evaluates how national courts handle trade mark parody cases, identifying instances of judicial pragmatism and highlighting remaining areas of contention. While some jurisdictions have introduced tests to safeguard parodic expressions, legal changes are incremental, necessitating further legislative intervention. Such intervention would contribute to the harmonisation goals within the European Union and demonstrate a stronger commitment to the right to freedom of expression. Finally, this article offers interpretative guidance for a fair and consistent treatment of humorous uses under trade mark legislation to ensure that the rights of trade mark holders and others’ interests are protected, whilst allowing true parodies and related genres to flourish.

Queer Marks

'Queer Trademarks' by Michael Goodyear in (2024) University of Illinois Law Review (Forthcoming) comments 

LGBTQ+ slurs can now be registered as trademarks. The U.S. Supreme Court’s decisions in Matal v. Tam and Iancu v. Brunetti allowed federal registration of disparaging, immoral, or scandalous trademarks. Appellee Simon Tam cheered, hoping that these decisions would usher in a new era of minority communities reappropriating harmful and offensive terms steeped in hate and prejudice. Others were less optimistic. Advocacy organizations, scholars, and others worried that these decisions opened the floodgates to the United States Patent and Trademark Office registering the vilest and most prejudicial terms in the U.S. lexicon to ossify hatred. Only time would tell who was right. 

Now, several years after Tam, this Article seeks to answer this question for LGBTQ+ slurs. A prior study found that affirming uses of racially-oriented marks by in-group members predominated over disparaging ones after Tam. This Article builds on that analysis and breaks ground on examining trademark law’s relationship with LGBTQ+ persons. To date, practically no scholarship has examined the relationship between trademark law and the LGBTQ+ community. This Article presents a new empirical analysis of 144 LGBTQ+-oriented trademark applications filed before and after Tam. This study finds that the number of LGBTQ+-oriented trademark applications has increased over twofold since Tam. More surprisingly, LGBTQ+-oriented marks have been overwhelmingly affirming in nature; not a single disparaging use of the slurs in trademarks was identified over the entire nine-year period. Based on these findings, I posit that Tam and Brunetti have facilitated increasing applications for and registrations of LGBTQ+-oriented trademarks by and for the LGBTQ+ community rather than as symbols of hate against it. 

Marks and Judicial Signifiers

'Albrecht Durer's Enforcement Actions: A Trademark Origin Story' by Peter Karol in 25 Vanderbilt Journal of Entertainment and Technology Law (forthcoming) comments 

This article offers a reappraisal of a pair of remarkably contemporary enforcement actions brought by the Northern Renaissance artist Albrecht Dürer (1471-1528) against copyists of his work. These cases have long been debated by art, cultural and copyright historians insofar as they appear to reject Dürer’s demand for proto-copyright protection for his prints. But surprisingly little attention has been paid by trademark scholars to the companion holdings—in the same cases—that affirm Dürer’s right to prevent use of his monogram on unauthorized reproductions. 

This article seeks to fill that gap by analyzing Dürer’s cases through the lens of contemporary trademark theory. It argues that, properly contextualized and understood, these cases provide the first complete record we have of tribunals enjoining the unsanctioned use of a famous mark in commerce both to protect consumers from purchasing mislabeled goods and preserve the source-associative power of that sign. In so doing, they show us a path towards recentralizing the role of artists and authors as a core aspect of trademark law’s otherwise industrial legal history.

In Choi v Secretary, Department of Communities and Justice [2022] NSWCA 170 - one of many judgments and tribunal decisions involving Ms Choi - the Court considered claims regarding denial of natural justice, defective procedure, conspiracy and invalidity such as a supposed requirement for the wearing of wigs.

The judgment states -

Appeal Ground 2 – Natural justice was not offered 

129. Ms Choi has raised various complaints as to the events on 21 July 2021: in summary, that the primary judge did not robe and did not wear a wig (which she contends was a breach of the Court Attire Policy); that there was a private hearing held in her absence (or that the primary judge had already started the hearing with the respondent in her absence); that the primary judge allowed his associate to email the respondent, without copying Ms Choi into the correspondence during the hearing; that the primary judge was making orders “while being instructed” by a third party (Ms Choi says the third party can only be Ms Kaban, who is alleged to have instructed the primary judge through Bluetooth); that there was a refusal to give audio recording files and written reasons for the orders; and that one ground on which she had consented to determine the matter on the papers conditionally was that his Honour said he had to go on leave and needed to hand the decision down by the end of 2021 but did not hand the judgment down until far later on 9 March 2022; and that the judgment “is not accountable”. As noted, Ms Choi has contended that there was a difference between the official transcript of the oral hearing and her transcript (taken from the unauthorised sound recording). 

130. Ms Choi says that: ... at 10:15 AM, I entered the Virtual courtroom. Two men wearing a jacket with no tie had bee [sic] talking about a tortured history of the proceedings since 2018 and the CourtBook [sic]. The courtroom was filmed in a zoom-in and I could see only an [sic] portrait of Justice Bellew who did not robe with no wig. No opening remark. In short, there was a private hearing in my absence. Also, the Associate emailed the Respondent during the hearing. I requested the Associate to send me that email. However, the Chamber ignored my request . A huge difference between the official Transcript and my Transcript. (the big font and cross-out in the Transcript are different). His Honour was being instructed when giving the oral Judgment. I am curious if one man wearing a brown jacket with no tie was his Honour. 

131. Ms Choi argues that wigs and robes are symbols of tradition and justice; and complains that the conduct of this matter “did not reach the Court’s expectations and cheap enough to reject my request to provide a sound recording and a full-version transcript including reasons for orders”. 

Respondent’s submissions as to the above complaints 

132. The respondent accepts that there was a brief conversation (recorded on the transcript) prior to Ms Choi becoming connected to the virtual courtroom but disputes that this amounts to a denial of natural justice. Insofar as Ms Choi raises issues as to the primary judge not being robed or wearing a wig, the respondent says that the customs relating to the wearing of judicial dress in New South Wales probably originated from the Judges’ Rules of 1635 promulgated by the Judges of King’s Bench; and that the Judges’ Rules did not have force of law and so were not received from England as part of the law of New South Wales. The respondent says that there has been no subsequent legislative intervention and the Supreme Court’s Court Attire Policy, insofar as it relates to robes and wigs, is directed at barristers.  … 

134. As to the suggestion that there was a denial of procedural fairness by reference to the fact that the primary judge was not robed or wearing a wig (or the contention that the primary judge was wearing a brown jacket), even apart from the fact that the Court Attire Policy governs the manner in which barristers are to appear before the Court, it cannot seriously be suggested that the wearing of robes or wigs is an requirement of natural justice or that a failure to do so is contrary to the rule of law. There are indeed many Courts in this country in which wigs are not worn in court hearings (including in recent years the High Court).  … 

Respondent’s submissions as to the above complaints 

149. As to the principal reasons articulated by Bellew J for declining to grant an extension of time in which to file the summons seeking leave, the respondent contends that Ms Choi is an experienced litigant (pointing to the fact that she has, since 2017, commenced approximately 30 sets of proceedings against (among others) the NSW Ombudsman, the Legal Aid Commission of NSW, the Commissioner of NSW Police and the University of Technology, Sydney before the Tribunal, in the Supreme Court and in the High Court) (annexing a list of those proceedings to the respondent’s submissions) and reiterates its position that this was simply a proposed re-litigation of matters previously disputed. ... 

213. What is clear, however, is that one looks to the nature and character of the function that is exercised in order to characterise it as either judicial or administrative: it is undoubtedly a matter of substance rather than form (or, as here suggested by Ms Choi, attire). Thus, whether or not the primary judge was wearing a wig says nothing about whether he was exercising judicial power. (Indeed, as may become apparent if Ms Choi pursues her foreshadowed application for special leave to the High Court, the judges of our ultimate appellate court do not wear wigs; but it would surely not be suggested that in hearing appeals and determining litigious controversies in the High Court without wearing wigs their Honours were exercising administrative rather than judicial functions.) Similarly, what colour suit the primary judge may have worn (Ms Choi expressing the opinion that judges wear black) or whether his Honour was wearing a tie, says nothing about the functions there being exercised. ... 

223. The features which make this a clear case for making [a Teoh] order are the quantity of proceedings commenced by Ms Choi, the disproportionality between the number of those proceedings and the matters in issue, the thousands of pages of material which regularly accompanies them (to none of which was this Court taken on the present applications) and the seriousness of the allegations made in circumstances where, if they were made by a legal practitioner, there would be a clear breach of the applicable professional rules. Among other things, Ms Choi has made allegations that: the Supreme Court issued a “fraudulent official transcript” of the hearing before Bellew J on 21 July 2021; there has been manipulation and/or removal by the Registry of part of the White Folder; the primary judge is in contempt; there has been a breach of the Privacy and Personal Information Protection Act 1998 (NSW) by the Registrar who provided assistance to Ms Choi by drafting a notice of change of address for service; and the primary judge has made orders under instructions from a third party. It is clear that Ms Choi has no compunction in making very serious allegations of fraud and corruption against any number of persons involved in the proceedings (without the necessary detail required to make such serious allegations). 

224. Moreover, following the hearing, Ms Choi has continued to inundate chambers with email correspondence making serious allegations against parties to the proceedings and inappropriate requests of the Court and the other parties. This has the inevitable result that Court time has been occupied in dealing with the matters and the respondents’ time and costs have been expended in responding to them. 

225. In addition, there is the absence of any place of address in New South Wales at which Ms Choi may be served, and against which, if necessary, execution can be levied. We do not express a view as to whether there has been conduct which amounts to either or both of a serious contempt of court and a serious breach of the Court Security Act by what has been published on YouTube, but the potential criminality as well as the practical difficulties in enforcing the costs orders that regularly accompany Ms Choi’s unsuccessful applications make the absence of the local address required by UCPR r 4.5 more than a merely technical breach. 

226. In short, all persons enjoy an important right to invoke the jurisdiction of this Court. However, that right comes with concomitant responsibilities, and it must not be thought that this Court is powerless to prevent its processes from being abused. It is appropriate in those circumstances and having regard to case management principles and the overriding purpose mandated by s 56 of the Civil Procedure Act to make such a direction in the present case.

Tobacco

'Using Tobacco Plain Packaging to Protect the Human Rights of Children' by Genevieve Wilkinson in (2022) 45(1) UNSWLJ 370 comments 

 The societal interest of public health protection has driven Australia’s regulation of tobacco products for many years. The recent decision of the World Trade Organization Appellate Body, Australia – Tobacco Plain Packaging, should encourage states to protect supportable societal interests even if they restrict the exercise of intellectual property rights. As the decision suggests that non-World Trade Organization agreements can support tobacco control measures, this article advocates for greater attention towards the human rights implications of these measures. A primary objective of tobacco plain packaging measures is to protect young people, engaging Australia’s obligations pursuant to the Convention on the Rights of the Child. The article argues that explicit engagement with children and recognition of their human rights in the development and implementation of plain packaging measures could have strengthened Australia’s defence of its plain packaging measures. It provides novel insights into what a child rights-based approach could mean for the future development of tobacco control measures worldwide.

Indigenous Arts

The Treasurer has announced a Productivity Commission inquiry into the nature and structure of the markets for Aboriginal and Torres Strait Islander Visual Arts and Crafts alongside policies to address deficiencies in these markets. 

The announcement states - 

 The Australian Government recognises that art is an important way for Aboriginal and Torres Strait Islander peoples to tell stories, share and strengthen cultures and connection to Country, promote understanding of history, strengthen communities, and expand economic opportunities. Aboriginal and Torres Strait Islander art is a vital part of Australia's identity and makes a large contribution to the economy. A significant and increasing proportion of products in the 'style' of Aboriginal and Torres Strait Islander arts and crafts that are sold in Australia are imitations that do not have any connection to Aboriginal and Torres Strait Islander peoples and provide no economic benefit to their communities. These products cause offence and harm to Aboriginal and Torres Strait Islander peoples and cultures and mislead consumers. The House of Representatives Report on the impact of inauthentic art and craft in the style of First Nations peoples (the Report), tabled in 2018, found that there is a lack of information and analysis on the markets for Aboriginal and Torres Strait Islander arts and crafts. Recommendation 1 of the report stated: The committee recommends as a matter of urgency that the Productivity Commission conducts a comprehensive inquiry into the value and structure of the current markets for First Nations art and crafts. The Government Response to this Report was tabled in Parliament on 2 September 2020. The Government agreed to Recommendation 1 of the Report, stating: The Government will commission a Productivity Commission study into the nature and structure of the markets for Aboriginal and Torres Strait Islander arts and crafts and policies to address deficiencies in these markets.

The Commission is asked to 

examine the value, nature and structure of the markets for Aboriginal and Torres Strait Islander arts and crafts and policies to address deficiencies in the markets. 

In undertaking the study, the Commission should:

• examine the nature and structure of the different parts of the domestic and international markets including authentic and inauthentic products 

• identify deficiencies and barriers in the markets and how they affect artists and other stakeholders 

• assess costs, benefits, governance arrangements, risks, practicalities and implementation challenges of any policy responses.

In doing so, the Commission should have regard to:

3.1. both regulatory and non-regulatory responses to the problems in the relevant markets, including education and social marketing measures, labelling and other certification arrangements, industry codes and the role of existing consumer and intellectual property laws 

3.2. the impacts on Aboriginal and Torres Strait Islander artists, and more broadly, the Australian Indigenous and the wider community from policy and regulatory reform 

3.3. the advantages and disadvantages of current initiatives that intend to remedy problems in the Aboriginal and Torres Strait Islander art and craft markets, and the lessons that can be learnt from them 

3.4. proposing possible policy and regulatory responses to address the identified deficiencies in the markets 

3.5. where it is feasible, indicate any quantitative estimates of the benefits, costs and commercial impacts of policy reforms.

In undertaking this research, the Commission should also consider: House of Representatives Standing Committee reports, including the Indigenous Affairs inquiry into the impact of inauthentic art and craft in the style of First Nations peoples and submissions received as part of the development of the Indigenous Visual Arts Industry Action Plan being led by the Australian Government and to be released in the first half of 2021.

Parody

'Fame, Parody, and Policing in Trademark Law' by Mark A. Lemley in (2019) Michigan State Law Review comments

 Trademark owners regularly overreach. They often threaten or sue people they have no business suing, including satirists, parodists, non-commercial users, and gripe sites. When they do, they often justify their aggressive legal conduct by pointing to the need to protect their trademarks by policing infringement. Courts have in fact indicated at various points that policing is, if not strictly necessary, at least a way to strengthen a mark. But courts have never held that efforts to block speech-related uses are necessary or even helpful in obtaining a strong mark. Several scholars have accordingly argued that overzealous policing is unnecessary, that it has harmful effects, and that we ought to punish it. But trademark owners continue to do it, in part because it is largely (though not completely) costless and because if there is even a chance a failure to police will cost you your trademark you won’t want to take the chance. So trademark law currently not only doesn’t prevent overreaching; it affirmatively encourages it. 

In this article, I suggest a way that we can align trademark owner enforcement incentives with good public policy. The presence of unauthorized parodies, satires, and complaint sites involving a mark should be evidence of the fame of the mark, and perhaps even a requirement for status as a famous mark. Taking this approach would be consistent with what we know about how society interacts with trademarks. Famous marks become part of a social conversation in a way that ordinary marks don’t. My approach has empirical support: the best-known brands draw more parodies and criticism sites than non-famous marks, and those parodies don’t interfere with the fame of the mark. And it would give trademark owners an affirmative reason to leave critics, satirists, and parodists alone.

Marks, Cultural Politics and Vilification

'Trademark Counterpublics' by Sonia Katyal and Vicki T. Huang comments

 In 2017, the Supreme Court in Matal v Tam held that the disparagement clause (s.2(a) of the Lanham (Trademark) Act 15 USC §1052(a)) was facially unconstitutional under the First Amendment. In striking down this clause, the Court removed the primary barrier to the registration of racist slurs as trademarks. The decision allowed the applicant, Simon Tam, to register the trademark THE SLANTS; however, the registration also empowered other persons to also register racist trademarks, as evidenced by the flurry of applications for such marks in the period following the decision. Controversially, the decision also neutered the protracted efforts by some Native Americans to de-register NFL-owned racist trademarks such as REDSKINS on disparagement grounds. In this paper, which blends both critical and empirical research, we offer a theory of counterpublic trademarks, focusing on trademarks, like the Slants, that develop in parallel to their official public spheres and (as Nancy Fraser has described) “where members of subordinated social groups invent and circulate counter discourses to formulate oppositional interpretations of their identities, interests, and needs.” 

We first set out to answer a question: do counterpublic trademarks exist? We find that the answer is yes, but in very small numbers. Using empirical data, we argue that self-appropriation in counterpublic trademarks is critically distinct from the appropriation of a slur by a non-affected group, both in terms of the intent behind registration as well as the potential “public” that are affected by such trademarks. To prove this hypothesis, we set out a methodology to measure the quantum of “racist” trademark applications over a 30-year period from 1988 to 2018. Our preliminary results show that out of close to 8 million trademark applications, the number of racist applications has remained consistently low (less than 1%) both before and after the Tam decision. However, what is significant is the racial identity of the applicants. Drawing on US Census data to identify race, the paper finds meaningful distinctions between which races actively self-appropriate slurs versus which races (typically Native American) suffer from racial “appropriation” of slurs by another group. This paper also finds interesting results as to which races (typically White and more recently Asian) are actively appropriating slurs against minority groups.

'Weaponising Copyright: Cultural Governance and Regulating Speech in the Knowledge Economy' by Debora Halbert in Blayne Haggart, Kathryn Henne and Natasha Tusikov (eds) Information, Technology and Control in a Changing World (Palgrave, 2019) 165-185 comments

 This chapter investigates the political and cultural implications of regulating speech via copyright. After an exploration of copyright governance within the context of Susan Strange’s knowledge structure framework, this chapter discusses cultural governance through copyright as a mode of censorship. I take up two recent examples where copyright was weaponised to curb speech. The first is an effort to control the speech of a controversial YouTube star. The second is an effort to curb the association of a cartoon character with white supremacy. In both cases, copyright performs a normative, not commercial, function, as copyright owners exert their control over their creative work to limit the expression of others. There is much to be troubled by regarding both the resurgence of white supremacy and the use of copyright to shape what can and cannot be expressed.

In Australia Fiona Patten, leader of the Reason party in the Victorian Parliament, has introduced a Private Member's Bill to "stop trolling in its tracks" by extending the Racial and Religious Tolerance Act  2001 (Vic) to cover hate speech based on gender, disability, sexual orientation, gender identity and sex characteristics.

The Bill would rename the statute as the 'Elimination of Vilification Act 2001'. The Preamble of the current Act would feature —

 The Parliament further recognises that the people of Victoria have other diverse attributes in relation to gender, disability, sexual orientation, gender identity or sex characteristics and the majority of Victorians embrace this diversity and live harmoniously together. 

However, some Victorians are vilified on the ground of their unique attributes. Vilifying conduct is contrary to democratic values. It diminishes a person's dignity, sense of self-worth and belonging to the community. It also reduces their ability to contribute to, or fully participate in society as equals, thus reducing the benefit that diversity brings to the community. 

It is therefore desirable that the Parliament further enact laws to extend protections for Victorians and which support inclusion.

Personality Rights

'The Right of Publicity's Intellectual Property Turn' by Jennifer E. Rothman in (2019) 42(3) Columbia Journal of Law and the Arts comments

The Article is adapted from a keynote lecture about my book, The Right of Privacy Reimagined For A Public World (Harvard Univ. Press 2018), delivered at Columbia Law School for its symposium, “Owning Personality: The Expanding Right of Publicity.” The book challenges the conventional historical and theoretical understanding of the right of publicity. By uncovering the history of the right of publicity’s development, the book reveals solutions to current clashes with free speech, individual liberty, and copyright law, as well as some opportunities for better protecting privacy in the digital age. 

The lecture (as adapted for this Article) explores in greater depth one major theme drawn from the book―the right of publicity’s turn in the late 1970s from being a personal right rooted in an individual to being an intellectual property right separable from the underlying identity-holder. This transformation of people into a form of intellectual property has led to significant expansions in the reach and scope of right of publicity laws across the country. At the same time, treating the right of publicity as IP has undermined First Amendment and copyright-based limits on these laws, and jeopardized the freedom of the very identity-holders upon whose interests the right is justified. The Article considers not only whether the IP rubric is appropriate for the right of publicity, but also whether the challenges posed by right of publicity laws are a magnified version of more general problems that IP laws face today ― in particular, the continued expansion of these rights unmoored from the initial justifications for the entitlements, and without adequate protections for socially valuable uses.

'Selfmarks' by William McGeveran in (2018) 56 Houston Law Review 333 comments

'Selfmarks' are branded personal identifiers that can be protected as trademarks. From Kim Kardashian West to Beyoncé’s daughter, attempts to propertize persona through trademark protection are on the rise. But should they be? The holder of a selfmark may use it to send a signal about products, just like the routine types of brand extension, cross-branding, and merchandising arrangements fully embraced under modern trademark law. Yet traditional trademark doctrine has adjusted to selfmarks slowly and unevenly. Instead, the law has evolved to protect selfmarks through mechanisms other than trademarks. In an age where brands have personalities and people nurture their individual brands, it is time to ask what principled reasons we have not to protect the individual persona as a trademark.

Trade Mark Cluttering and the DNS

'Does trade mark cluttering exist in Australia?' (IP Australia Economic Research Paper 07) comments

When cluttering of the trade mark register becomes significant, it has the potential to undermine competition and stifle innovative entrepreneurship. The Productivity Commission’s 2016 Inquiry Report, Intellectual Property Arrangements (PC 2016), identified trade mark cluttering as a possible problem to be addressed in order to ensure the effectiveness of the trade mark system in Australia. However, the PC report did not provide sufficient evidence in support of this claim. This paper explores more extensively whether there is any evidence indicating trade mark cluttering in Australia and assesses how significantly it has been affecting the register. We find that overall the extent of trade mark cluttering in Australia is not unduly serious on the evidence of two key indicators: less than 0.1 per cent of registered trade marks have been removed annually by a third party via the non-use removal procedures; while about 0.5 per cent of trade marks in force may be blocking other applications while they are not in use. Relative to the total number of trade marks on the register, these small proportions do not seem to be cause for concern. 

Nevertheless, potential sources of trade mark cluttering have been increasing in Australia: the first renewal rate has decreased from about 70 per cent in the 1980s to 50 per cent in the 2000s, and an increasing number of trade marks remain on the register for an average of an extra four to five years after their owners deregister their businesses. A comparison of the average number of classes per trade mark between Australia and some countries and priority pairs between Australia and the United States indicates that the per-class-based fee system and proof-of-use requirement have played a positive role in reducing the extent to which non-use trade marks and overly broad non-use classes remain on a register.

IP Australia states

Trade marks identify a unique product and serve to distinguish a business’s goods and services from those of competitors. The mark can be a symbol, letter, number, word, phrase, sound, smell, shape, logo, picture and/or an aspect of packaging. In the case of word marks, studies have found that the most competitively effective trade marks for businesses are unique and concise, with short common words generally working better than neologisms (Beebe and Fromer, 2018). 

Consumers often know little about the characteristics of the goods or services they are considering purchasing and there are numerous unobservable differences in the quality of goods and services. Trade marks therefore play an important role in bridging the information asymmetries between producers and consumers. For consumers, a unique trade mark helps them to identify their desired product by associating it with various attributes that serve to establish its quality and reputation. For producers, a registered trade mark gives the owner the exclusive right to use and authorise other people to use the trade mark. 

With clarity in trade marks, producers and sellers can create concise identifiers for specific goods and services, thereby facilitating market transactions. Therefore, clarity in the Trade Marks Register serves to provide transparency to other potential traders and enable them to easily identify where market opportunities do, or do not, exist and enabling them to target gaps in the market. 

Trade marks are by far the most widely used intellectual property (IP) right because they are not specific to an invention, like patents or design rights, but to the broader identity of a business. Trade marks are the legal underpinning of a business’s brand and the two concepts are closely related but often confused. A brand is an intangible asset that makes up a significant share of a company’s value, and branding is a key arm of a company’s business strategy.  Branding is also integral to a business’s innovation strategy, as it reflects the business’s attempts to define and position itself in the marketplace. Maintaining a business’s brand reputation is an ongoing work that involves continual refinement of its strategy and investment in response to the dynamics of changing markets and consumer tastes. A strong brand helps a business build customer loyalty and obtain a price premium for its products, increasing its revenues and profits. Trade marks are important for the protection of a business’s brand reputation.   

Trade mark cluttering refers to a phenomenon suspected to be a problem for many trade mark registers around the world: it occurs when a large number of unused trade marks or overly broad trade marks (including unused classes) remain on a register that block others’ use of the same or similar marks. This clutter substantially increases the costs to other applicants of creating and registering new trade marks (Graevenitz et al. 2012). These costs are an obvious burden for new entrants to a market, but they can also affect existing businesses trying to create new trade marks. Trade mark cluttering can undermine the effectiveness and the efficiency of the trade mark system by making it more difficult and expensive for new applicants to establish their brands, resulting in unfair advantages for incumbent firms over new entrants (Greenhalgh and Webster 2015). Consequently, it weakens the role of the trade mark system in promoting fair competition (Carter 1990) and increases the cost to consumers of searching and identifying their desired products in the market. Trade mark cluttering also has a negative impact on trade mark offices in terms of their wasted efforts administering unused trade marks and searching inflated trade mark registers. 

Closely related to trade mark cluttering are problems of trade mark depletion and congestion; these have been closely examined in the US by Beebe and Fromer (2018). Trade mark depletion occurs when a decreasing number of available words, signs, or their combinations remain unclaimed by any trade mark owner. Implicitly, depletion assumes the supply of trade marks is finite, contrary to an assumption that has long prevailed in economic thinking about trade marks (c.f. Posner and Landes, 1989) and governed policymaking. By contrast, trade mark congestion happens when, for any given mark that has already been claimed, that mark is claimed by an increasing number of trade mark owners. This can occur when a trade mark is assigned to multiple owners but in different classes of goods and services, as allowed under the Nice classification system administered by the World Intellectual Property Organization (WIPO). 

The problems associated with trade mark cluttering may be exacerbated and become systemic if growing numbers of applicants try to register trade marks but with no intention of future use, whether for defensive or other reasons (Graevenitz et al. 2012). 

The Productivity Commission’s 2016 Inquiry Report, Intellectual Property Arrangements (PC 2016), identified trade mark cluttering as a potential problem that needs to be addressed in order to ensure the effectiveness of the trade mark system in Australia. The Commission’s assessment was based on two main indicators of trade mark cluttering:

i. Rapid growth in the number of applications and registrations of trade marks in Australia in recent decades. 

ii. An increasing success rate of oppositions to trade mark applications on the grounds that the provisions of a mark were too similar to an existing mark (s. 44 of the Trade Marks Act (1995)) or that another similar mark already has achieved a reputation in Australia (s. 60). 

The Commission’s report largely attributed the cluttering to the introduction of the presumption of registrability in the Act, and suggested that this has swung the balance too far in favour of trade mark owners. IP Australia observed that the presumption of registrability was introduced in response to concerns that the previous legislation was too strict and prevented registration of marks that should have been registrable. It argued that “the increased likelihood of a trade mark application being registered is not in itself evidence that the register is cluttered” (IP Australia 2016). While the Commission’s report suggested Australia’s trade mark system is “lax” in encouraging businesses to seek rights as broadly as possible, it did not conclusively demonstrate the existence of significant cluttering in Australia as it did not provide evidence on non-use of trade marks on the register. 

In its submission to the Commission’s inquiry, IP Australia agreed that the trade mark system should not encourage applicants to seek registration of their trade marks without any intention to use them or for more goods or services than they need. IP Australia also suggested that this is an area in which more work should be done in order to identify the nature and extent of the problem (IP Australia 2016). It is against this policy background that the Office of the Chief Economist at IP Australia initiated its own investigation into the potential existence of trade mark cluttering in Australia, with the aim of providing an evidence base to support IP policymaking by the Australian Government.

'Confusing the Similarity of Trademark Law in Domain Name Disputes' by Christine Haight Farley in  (2019) 52 Akron Law Review 657 comments

This article anticipates doctrinal disorder in domain name disputes as a result of the new generic top-level domains (gTLDs). In the course of the intense and prolonged debate over the possibility of new gTLDs, no one seems to have focused on the conspicuous fact that domain name disputes incorporating new gTLDs will be markedly different from the first-generation domain name disputes under previous gTLDs. Now second-generation disputes will have the added feature of the domain name having a suffix that will likely be a generic word, geographic term, or trademark. This addition is significant. Rather than disputes over mcdonalds.com, we will have disputes over mcdonalds.ancestry. Before these new gTLDs, Uniform Dispute Resolution Procedure (UDRP) panels have routinely ignored the gTLD portion of the domain concluding that the suffix is inconsequential to their determinations of confusing similarity. This approach has already changed. While this change may seem trivial especially in a non-precedential system, the consequence of this change may be profound for trademark owners’ rights on the internet and portend a fundamental shift in how trademarks will be called upon to pick winners and losers in this new land grab. Farley,  

Trade Mark Congestion

Are We Running Out of Trademarks? An Empirical Study of Trademark Depletion and Congestion' by Barton Beebe and Jeanne C. Fromer in (2019) 131 Harvard Law Review 945 comments

American trademark law has long operated on the assumption that there exists an inexhaustible supply of unclaimed trademarks that are at least as competitively effective as those already claimed. With respect to word marks in particular, the conventional wisdom holds that we will always enjoy a surplus of preexisting words, and in any case trademark adopters can simply coin new words, the supply of which is thought to be effectively “infinite.” 

This empirical assumption — that the supply of good, competitively effective trademarks is inexhaustible — has long formed the foundation of important theoretical conjectures at the core of trademark law and policy. The most significant of these is that when we grant exclusive rights in a trademark, the cost to competitors, consumers, and more generally to the public domain is inconsequential.

Contrary to the conventional wisdom in trademark law, however, popular media has lately begun to make the opposite empirical claim: that the supply of good trademarks is, in fact, exhaustible and that we have very nearly exhausted it. For example, the New York Times recently asserted that “[a]lmost every naturally occurring word has been claimed, which is why namers so often arrive at portmanteaus (Accenture derives from ‘accent’ and ‘future’) or drop vowels (Flickr and Tumblr) or change letters (Lyft).” 

The article recalled an entrepreneur’s description of his efforts to find a name for his new company: “Every name we liked, either somebody already had it or it wasn’t trademarkable or it meant something pornographic in another language.”  For the Chicago Tribune, the focus was craft beer and the headline was “Craft Beer Makers Running Out of Names. How About Flip Donkey Doodleplunk?”  NPR has further reported that “[v]irtually every large city, notable landscape feature, creature and weather pattern of North America — as well as myriad other words, concepts and images — has been snapped up and trademarked as the name of either a brewery or a beer.”  For The Guardian, the focus was band names under the headline “FKA Twigs, Slaves, Deers: Are We Running Out of Band Names?” The article observed that “[a]ll the best monikers have been taken, and now the lawsuits are flying.” Popular television series have also taken up the theme. Futurama and South Park have each featured scenes in which nearly all words or word combinations have already been trademarked.  Meanwhile, free speech advocates have grown increasingly vocal about the pervasive trademarking of everyday words. The YouTube duo the Fine Brothers announced in 2016 that they had applied to register the word “react,” after their series of videos. The public reaction was critical and merciless. One commenter joked about registering the word “the” and threatened that “anyone who says it get[s] sued.” The commenter was no doubt unaware that at the time there were already eleven active trademark registrations claiming just the word THE. Another commenter stated simply: “REACT is not yours to trademark.” In response to the furor, the Fine Brothers withdrew their trademark application. To the extent that legal and popular commentary has engaged the question of the exhaustibility of the supply of trademarks, the discussion has been based at best on anecdata and at worst on raw assertion. This Article seeks to move beyond both by systematically studying all 6.7 million trademark applications filed at the U.S. Patent and Trademark Office (PTO) from 1985 through 2016 together with the 300,000 trademarks already registered at the PTO as of 1985, which is made possible by the PTO’s recently released Trademark Case Files Dataset. By contrast, trademark congestion is the process by which an already-claimed mark is claimed by an increasing number of different trademark owners. This Article focuses specifically on word marks and thus on word-mark depletion and word-mark congestion. Overall, the data show that the conventional legal wisdom is wrong and the conventional popular wisdom is right. The supply of word marks that are at least reasonably competitively effective as trademarks is finite and exhaustible. This supply is already severely depleted, particularly in certain sectors of the economy, and levels of depletion continue to rise. Those marks that are registered are growing increasingly congested. The result, as the data reveal, is that new trademark applicants are increasingly being forced to resort to second-best, less competitive marks, and the trademark system is growing increasingly — perhaps inordinately — crowded, noisy, and complex. 

Specifically, the data present compelling evidence of substantial word-mark depletion, particularly with respect to the sets of potential marks that businesses prefer most: standard English words, short neologisms that are pronounceable by English speakers, and common American surnames. Together with the PTO dataset, we use the Corpus of Contemporary American English dataset of the 100,000 most frequently used words in American English and the U.S. Census’s list of the 151,672 most frequently occurring surnames in the United States to show the extraordinarily high proportion of English words and common surnames that are already registered as trademarks. We further show the remarkably low proportion of words and surnames not confusingly similar to already-registered marks. With respect to short neologisms, we use the Carnegie Mellon University Pronouncing Dictionary and LOGIOS Lexicon tool to construct a phonetic representation of each word mark applied for or registered in the PTO dataset. Based on these data, we show that the supply of short neologisms not confusingly similar to already-registered marks is substantially declining. Finally, because many trademark applicants prefer to be able to register any new mark as a domain name in the .com top-level domain, we use Verisign’s .COM Zone File consisting of some 128 million currently registered domain names in the .com top-level domain to illustrate the near-total depletion in that space of standard English words, common American surnames, and short neologisms. 

Given these conditions, new applicants are increasingly resorting to suboptimal marks. The data indicate that applicants are applying less often for standard English words and common surnames and more often for more complex marks, as measured by character, syllable, and word count. We think that applicants are modifying their conduct in this manner primarily to avoid applying for marks that the PTO would refuse to register on the basis of section 2(d) of the Lanham Act, which denies the registration of a mark that, due to its similarity with an already-registered mark, would confuse consumers as to source. Yet applicants appear to be increasingly unsuccessful in avoiding such refusals. We use our original dataset of all 2.1 million trademark office actions issued by the PTO from 2003 through 2016 to report the increasing rate at which the PTO is refusing applied-for marks on the basis of section 2(d). Despite these trends, one class of applicants appears to be doing fine. Incumbent applicants (those applying based on previous registrations) continue to apply for non-neologisms at a rate substantially higher than nonincumbent applicants and continue to enjoy very low section 2(d) refusal rates.

The data also reveal compelling evidence of substantial word-mark congestion. Consistent with increasing section 2(d) refusal rates, trademark applicants are increasingly resorting to what we term “parallel registrations.” Two firms can use exactly the same mark provided that their uses would not confuse consumers as to source (for example, DELTA for faucets and DELTA for airlines). Nevertheless, a trademark owner would prefer to be at best the only firm in the economy using a particular mark and at least the only firm in its economic sector doing so. Parallel uses may not confuse consumers as to source, but each use destroys the uniqueness and blurs the distinctiveness of the other, particularly for newer entrants. They also increase consumer search costs. Yet the data show steady increases in parallel registrations of frequently used English words and common surnames both across and within classes of goods and services. Firms appear to be increasingly settling for sharing marks with others. 

These findings urge a rethinking of many of the fundamental assumptions underlying trademark law. Most importantly, they emphasize that the granting of trademark rights imposes real costs on the ecology of the trademark system, and that as we begin to test the limits of this ecology, these costs are mounting. New market entrants face significant barriers to entry in the form of the cost of searching for an unclaimed mark and in the ongoing cost of using a less effective mark. Consumers must cope with an ever more crowded field of trademarks consisting of increasingly complex marks that may refer to multiple different sources. The public domain must cope with the fact that, as we report below, when we use our language, about three-fourths of the time we are using a word that someone has claimed as a trademark.

These findings also counsel fundamental reforms of trademark law and doctrine. For example, given the costs a trademark registration imposes on the rest of the trademark system, particularly when the registration consists of a desirable word like a standard English word, we could enforce the use requirement more aggressively, as the PTO has already begun to do. We could also elevate the required showing of secondary meaning that an applicant must make when seeking to register a descriptive mark. In general, we could institute various schemes of congestion or peak pricing with respect to application, maintenance, and renewal fees to compel registrants to internalize more of the costs that their registrations impose on competitors, consumers, and the public domain. We could also take the degree of trademark depletion and congestion in particular sectors into account in the protectability, infringement, and trademark fair use analyses. The challenge in all cases will be to ensure that these reforms do not impose even greater costs on entrants. To be sure, many of these reforms may strike current trademark owners as unthinkable. But they are unthinkable only if we continue to fall back on the conventional wisdom that the trademark system is based on an inexhaustible resource, or in any case, that our economy could never reach a stage of development that would begin to test the limits of this resource. As we show, this conventional wisdom is wrong, and we must begin to consider ways of adapting to the limits of the trademark system. 

Part I provides background on the trademark registration process and addresses the question of how to define the universe of good trademarks. Of course, the supply of possible trademarks, like the supply of possible personal names, is theoretically infinite. At the extreme, new firms could simply adopt alphanumeric codes of indefinite length to identify themselves. We explain why this is the wrong way to think about the universe of potential trademarks and why marketers rightly see this universe in very different terms. Part II describes our datasets. Parts III and IV present evidence of word-mark depletion and word-mark congestion, respectively. Though we draw upon “big data,” our evidence takes the form of straightforward descriptive statistics showing clear trends over time. Part V sets out the implications of our findings for trademark law and policy.

Certification Marks

"Anglo and E.U. Frameworks for Certification and Collective Trade Marks' by Graeme Austin in Ginsburg and Calboli (eds) Cambridge Handbook on International and Comparative Trademark Law (Cambridge University Press, Forthcoming) comments

Ordinary trademarks promise consistent quality. This promise is the quid pro quo for the trademark proprietors’ right to control the goodwill symbolized by the mark. Subject to external regulatory controls (safety standards, truth in labeling laws, etc.), it is largely up to the trademark proprietor to set those standards. If a firm wants to attach its brand to a chocolate product containing low levels of cocoa butter, that is its prerogative. It will be motivated to do so if consumers signal their approval with purchases. Certification trademarks, in contrast, promise consumers consistency with a pre-defined set of standards. This chapter, to be published in the Cambridge Handbook on International and Comparative Trademark Law (Ginsburg and Calboli eds.) discusses certification and collective marks in the Anglo tradition. The Anglo tradition will be illustrated by the provisions in the U.K. Trade Marks Act 1994, but reference will be made to the laws of other common law jurisdictions where there are salient distinctions. The chapter also outlines the new European Union framework. It discusses some of the important characteristics of these marks, focusing on the application of the distinctiveness standard for certification marks as well as any relevant controls on the administration of this species of trademark. Finally, the chapter briefly considers infringement issues. It concludes with some brief reflections on the social role of certification trademarks as “private governance” vehicles.

Prosecco Geographical Indication

Geographical Indications (GI), one of those areas of intellectual property law that delight the more advanced IP students and bewilder populists or tired journalists. There's a delicious piece out this month for people considering the current Prosecco controversy. Who knows, it might even feature in a tutorial this semester!

'In Vino Veritas? The Dubious Legality of the EU’s Claims to Exclusive Use of the Term ‘Prosecco’' by Mark Davison, Caroline Henckels and Patrick Emerton coming up in Australian Intellectual Property Law Journal comments 

The European Union (EU) maintains that the word “Prosecco” is a geographical indication for a type of wine made in Northern Italy, rather than a grape variety. This position has been relied on by the EU to ban the importation of any wine labelled as Prosecco into the EU, and into other countries with which the EU has free trade agreements. Moreover, the EU is demanding that Australian wine producers be prohibited from marketing wine labelled Prosecco in Australia, as a condition of its entry into a bilateral trade agreement. Based on a detailed historical analysis of the use of the term Prosecco in Italy, this article argues that that the EU’s characterisation of the term is erroneous and is intended to operate to protect Italian Prosecco producers from international competition. By implication, the EU regulation is likely to contravene Article 20 of the World Trade Organization’s Trade Related Aspects of Intellectual Property Agreement (which prohibits governments from unjustifiably encumbering the use of trademarks) and Article 2.1 of the Agreement on Technical Barriers to Trade, (which prohibits, inter alia, technical regulations pertaining to terminology and labelling that unjustifiably discriminate between similar domestic and imported products). Furthermore, a prohibition on the use of the word Prosecco on Australian products in the Australian market may be inconsistent with the Australian Constitution, which prohibits the acquisition of property by government on other than just terms. These issues also point to a more fundamental question: namely, whether and if so to what extent domestic legal systems may permissibly be used to generate claims to intellectual property that are then used to leverage international protection for that intellectual property.

The Complementary Medicine Taskforce: A Homeopathic Consultation?

Homeopathic products purport to cure a range of general of specific ills through pills, potions, linaments and other 'medications' in which the claimed active ingredient is undetectable. The Commonwealth appears to have adopted a homeopathy model for consultation about labelling of complementary medicine products: consultation is being done quickly, privately, without public engagement with consumers or independent health experts and potentially without much benefit for consumers.

Last month the national Minister for Industry, Science and Technology, Karen Andrews, announced the Complementary Medicine Taskforce: a review of "the impact of recent consumer law changes on the complementary healthcare sector".

The announcement is pitched as helping to meet consumer demand for more information on where products are made, after changes to the Australian Consumer Law and Country of Origin Labelling requirements last year.

After controversy last year about adulteration and labelling of products such as honey ('Australian' honey apparently doesn't have to have much material from Australian bees and indeed not to have much honey as distinct from beet/cane syrup) and fish oil you might expect that the review is concerned with looking after consumers. Apparently not; it's concerned with exports (typically by overseas-owned groups).

The announcement states

 "The Morrison Government is committed to helping local industry tap into our export markets, and ensuring our business community has opportunities to sell more products overseas," Minister Andrews said. 

"We’re helping Australian businesses sell more of their high-quality products and services to overseas consumers, helping these businesses expand and employ more staff, driving economic growth." 

"The Morrison Government has heard the strong industry representations on this issue, and this Taskforce will assist our manufacturers by enabling further consideration and assessment of industry concerns." 

The law change has led to some complementary healthcare producers no longer being able to claim their product is made in Australia or carry the Australian Made, Australian Grown logo. This logo is widely recognised in export markets and promotes Australian high-quality products. 

Minister Andrews said it’s important for all industry stakeholders and consumer groups to understand "Made in Australia" and use of the logo. 

"The Taskforce will examine the impact of changes to Country of Origin Labelling laws on manufacturers of vitamins, minerals and supplements and their origin claims," Minister Andrews said. 

"The complementary healthcare sector in particular is an important and growing contributor to our economic prosperity. The industry employs around 29,000 people and estimates show that exports currently exceed $1.2 billion. "We are proud of the quality of Australian made products and want to ensure the regulatory environment facilitates these products being exported into global markets."

The industry is of course also a major donor to political parties and affiliates.

The announcement states that the taskforce is expected to report to government in early 2019.

The review's Terms of Reference apparently have not been released publicly.

They appear to be as follows, noting rebadging of the review as the "Complementary Healthcare Sector Country of Origin Labelling (CoOL) Taskforce

1. Background 

The purpose of the Complementary Healthcare Sector Country of Origin Labelling (CoOL) Taskforce (the Taskforce) is to examine concerns raised by the Complementary Healthcare Sector (the Sector) about changes to the use of the ‘Australian Made, Australian Grown’ (AMAG) logo, and investigate options that may address these concerns while maintaining consumer confidence in the authenticity of ‘Made in Australia’ claims. 

The Sector reports that a rapid increase in international sales of vitamins, minerals and supplements has led to greater domestic investment and job creation. The Sector has identified that claiming Australian origin and using the AMAG logo is a key marketing advantage when selling into both domestic and export markets. 

The overall sector revenue is reported by industry as $4.9 billion in 2017 across 82 Australian-based manufacturers. Industry representatives say that if a significant reduction in sales occurs in export markets, impacts could include reduced employment and growth in the sector. 

The AMAG logo is licensed to industry by Australian Made Campaign Limited (AMCL) in accordance with the Deed of Assignment between the Commonwealth of Australia and AMCL and the AMAG Logo Code of Practice (certified trade mark rules). The AMAG logo can only be licensed for products that are consistent with Australian Consumer Law (ACL) safe harbour defences. 

The February 2017 changes to the substantial transformation test under the ACL, meant for claims of ‘Made in Australia’ to qualify for the relevant ACL safe harbour defences, a new product with imported ingredients needs to be fundamentally different in identity, nature or essential character from the imported ingredients. 

The Australian Competition and Consumer Commission’s (ACCC) guide to the Sector in March 2018 outlined a number of production scenarios that the ACCC considers likely to either meet or not meet safe harbour defences. The Sector is concerned that many of its products will not meet the ACCC’s interpretation of substantial transformation and therefore will not be allowed to use the AMAG logo. 

2. Purpose 

The Taskforce will consider and assess reported impacts on the Sector of the changes to the substantial transformation test under the ACL. Both industry and consumer interests will be considered in this process. 

3. Scope 

The Taskforce shall:

1. Assess how the current CoOL policy framework, including ACCC guidance regarding the substantial transformation test, interacts with the complementary healthcare sector. This shall include reporting on industry concerns about how this policy and guidance may be impacting upon business decisions within both the Sector, and AMCL in licensing use of the AMAG logo. 

2. Assess the commercial impacts of the current substantial transformation test under the ACL on the complementary healthcare sector regarding products generally referred to as vitamins, minerals and supplements. 

3. Assess Australian consumer expectations relating to suggested changes by the Sector regarding rules governing the use of the AMAG logo. This will include consideration of impacts on consumer choices in purchasing products, and the need to protect and ensure the integrity of Australian made claims and the AMAG logo. 

4. Give consideration to broader market or industry impacts regarding CoOL and AMAG logo use beyond the complementary healthcare sector. 

5. Identify appropriate next steps for responding to the Sector’s concerns 

4. Membership 

The Taskforce will comprise representatives from the:

1. Department of Industry, Innovation and Science; 

2. Department of the Prime Minister and Cabinet; 

3. Treasury; 

4. Department of Foreign Affairs and Trade/ AusTrade; 

5. Department of Agriculture and Water Resources; 

6. Therapeutic Goods Administration; 

7. Department of Health; and 

8. Australian Competition and Consumer Commission. 

In conducting its activities the Taskforce will consult with:

- Relevant State Government agencies; 

- Complementary Medicines Australia; 

- manufacturers within the complementary healthcare sector; 

- other industry stakeholders with an interest in ‘Made in Australia’ claims 

- consumer organisations; 

- Australia Made Campaign Ltd; and 

- other agencies and/or stakeholders as required. 

5. Operations 

The Taskforce:

1. Will meet as required. If required, members can ask the chair to hold additional meetings, providing at least two weeks’ notice is given. 

2. Will meet via teleconference with the option to meet in person if appropriate. Members may (on agreement with the Chair) undertake work out-of-session to inform and support the deliberations of the Taskforce. 

The Department of Industry will provide the Chair and Secretariat for the Taskforce. 

Members will contribute professional knowledge and expertise to discussions of the Taskforce. 

Members may be requested to contribute data to establish an evidence base for the Taskforce to consider options. 

Some sales, employment or marketing data (or other commercial information) relevant to Taskforce deliberations may be commercial-in-confidence. The Taskforce will seek advice as appropriate to manage the confidentiality of data provided to the group. 

The Taskforce may draw upon the expertise of non-members to inform the discussions of the group on an ad-hoc basis. The Chair will consider and approve such requests. The Chair will consider for approval requests for the attendance of non-members (outside of the Secretariat) at Taskforce meetings. 

6. Deliverables 

The Taskforce shall provide Government with a report addressing each of the issues identified for examination within scope for the Taskforce. The Taskforce will provide advice to Government by the end February 2019. 

7. Review and reporting 

Members of the Taskforce will have scope to review and comment on the final report. The final report will be delivered to the Minister for the Department of Industry, Innovation and Science and the Assistant Treasurer.

What we have here is a review with no commitment to releasing a report on a timely basis, bearing in mind the Government's recalcitrance in the face of releasing the report of the review of pharmaceuticals a few years ago. We might hope that Government's stated commitment to 'Open Government' is given effect through early release of the report and details of the concerns voiced by the sector

It is a review that is weighted towards industry; consumer advocates and other health advocates appear as an afterthought, particularly given

• the limited publicity about the review 
• non-release of the Terms of Reference 
• non-release of indications of how advocates can engage with the review). 

We might be asking a more challenging question: should governments be encouraging domestic and overseas consumption of products that are often expensive, therapeutically unnecessary but replete with the puffery that delights consumer law scholars and attracts attention from the ACCC. Some examples are here,  here and here.

Among the literature see  'Commercialism, choice and consumer protection: regulation of complementary medicines in Australia' by Harvey, Korczak, Marron and Newgreen in (2008) 188(1) Medical Journal of Australia 21-25, Vitamania: Vitamins in American Culture (New Jersey: Rutgers University Press 1996) by Rima Apple, 'Dietary Supplements: Can the Law Control the Hype' by Iona Kaiser in (2000) 37 Houston Law Review 1249-1277, 'The effectiveness of popular, non-prescription weight loss supplements' by Egger, Cameron-Smith and Stanton in (1999) 171(11) Medical Journal of Australia 604-608 and 'Truth and Consequences: The Perils of Half-Truths and Unsubstantiated Health Claims for Dietary Supplements' by Vladeck in (2000) 19(1) Journal of Public Policy & Marketing 132-138.

Trade Marks

'The Consumer as the Empirical Measure of Trade Mark Law' by Kimberlee Weatherall in (2017) 80(1) The Modern Law Review 57-87 comments

Although consumer responses to signs and symbols lie at the heart of trade mark law, courts blow hot and cold on the relevance of empirical evidence – such as surveys and experiments – to establish how consumers respond to alleged infringing marks. This ambivalence is related to deeper rifts between trade mark doctrine and the science around consumer decision‐making. This article engages with an approach in ‘Law and Science’ literature: looking at how cognitive psychology and related disciplines conceptualise consumer decision‐making, and how counterintuitive lawyers’ approaches appear from this perspective. It demonstrates how, especially when proving confusion, decision‐makers in trade mark demand the impossible of empiricists and are simultaneously blind to the weaknesses of other sources of proof. A principled divergence, without seeking to collapse the gaps between legal and scientific approaches, but taking certain small steps, could reduce current problems of proof and contribute to better‐informed, more empirically grounded decisions.

Fake Indigenous Cultural Expression

The Commonwealth House of Reps Standing Committee on Indigenous Affairs has released its report on The impact of inauthentic art and craft in the style of First Nations peoples

The title is an innovation; The Committee states

The words ‘First Nations’, ‘Indigenous’ and ‘Aboriginal and Torres Strait Islander’ are used interchangeably in this report to refer to the Aboriginal and Torres Strait Islander peoples of Australia and their art and cultures. 

While the committee understands that some Aboriginal and Torres Strait Islander peoples may not feel comfortable with some of these words, we only mean to convey respect through the use of these words. 

The Committee was to

Inquire into and report on the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia, including:

• the definition of authentic art and craft products and merchandise; 

• current laws and licensing arrangements for the production, distribution, selling and reselling of authentic Aboriginal and Torres Strait Islander art and craft products and merchandise; 

• an examination of the prevalence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise in the market;  

• options to promote the authentic products for the benefit of artists and consumers; and 

• options to restrict the prevalence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise in the market.

The Chair's Forward states

Our First Nations peoples have been the guardians of their country and culture for thousands of years. It is an ethical and moral demand that we assist this process into the future.

First Nations art and craft is not simply a collection of design elements in some artistic media presentation. They are in fact a representation of cultural songlines. Art is therefore integral to the cultural identity, stories and history of First Nations peoples. It is about a continuous celebration and preservation of that history and cultures, which underpins all of the issues raised.

An extraordinary statistic that emerged from the evidence received is that 80% of the souvenirs sold in Australia purporting to represent First Nations cultures are in fact imitation products. These inauthentic items have no connection to First Nations peoples and are often cheaply made imports.

The committee’s own observations during several visits to gift shops in popular tourist areas of Sydney were consistent with this overwhelming statistic. What also became clear during this inquiry is that most buyers of these souvenirtype products are likely unaware that they are predominantly inauthentic. Indeed most non-Indigenous Australians and visiting tourists cannot readily distinguish authentic First Nations art and craft from imitation products.

There are two key elements that contribute to this situation. The first is that there is no accepted industry standard for authenticity, which is largely reflected by the confusing and sometime deliberately misleading presentation and labelling of these products. The second is that there is a clear lack of effective education about authenticity throughout the supply chain for First Nations art and craft, from the manufacturer to the point of sale.

First Nations artists and their communities feel completely disrespected and cheated by what is going on at the moment, particularly in the souvenir trade. They feel that their cultures are being stolen through the supply of these imitation products. In addition, they are being denied the opportunity to make a living from the obvious interest and market demand for First Nations art and craft.

This unacceptable misappropriation of First Nations cultures cannot be allowed to continue unchecked. These imitation products exist solely to make money. They demean the rich and ancient history of Australia’s Indigenous peoples. These items have a profound and harmful effect on First Nations peoples. They do not teach or inform the buyer about Indigenous heritage as they have no connection to it. Beyond the immediate consequences mentioned above, this situation has a negative impact on Australia’s image abroad.

Four fundamental points must be stressed:

• First Nations art, craft and cultural expressions belong to First Nations peoples. Non-Indigenous artists and artisans should not appropriate or copy this expression in any way, even with good intentions. 

• Whilst producing and selling imitation First Nations art and craft is not unlawful, it has a negative impact on the integrity of the ancient cultural heritage of First Nations peoples.  

• Any inauthentic piece of Indigenous art, craft or artefact such as a boomerang or didjeridu not made by a First Nations artist is by its very nature and existence purporting to be culturally authentic when it is not. 

• First Nations cultures are an intrinsic part of Australian culture and allowing it to be compromised damages the identity of our nation as a whole.

First Nations fine art does not appear to be affected by authenticity issues to the same extent as the souvenir trade. This is due in part to the buyers being more discerning and the need for galleries to protect their reputation by ensuring the provenance of more expensive artworks. There are still troubling issues in this part of the market however such as alleged carpetbagging by unscrupulous dealers and unethical practices by some galleries.

There are of course other examples of individuals and businesses making outstanding contributions to safeguarding Indigenous cultural expressions. Among these are the First Nations art centres which provide opportunities for Indigenous artists, fostering and preserving their heritage. The Indigenous Art Code does an impressive job of trying to get businesses to adopt its voluntary code of practice, and thus behave ethically and responsibly in the sale of Indigenous art and craft.

They need more help however. Many art centres struggle to retain qualified staff due to lack of infrastructure and housing. This has a hugely negative impact on them as a business. They also need greater access to business development expertise. As many of these centres operate in very remote areas, there are obvious social and economic benefits to growing these businesses.

The Indigenous Art Code has only one staff member and cannot fulfil its mandate with such little resourcing, although it has done a remarkable job to date in spite of this.

There is huge potential for great outcomes in First Nations communities with the right assistance to these key entities and the right policies in place. Another policy area of particular interest was the effectiveness of existing copyright and consumer laws to provide protections for First Nations cultural expressions, including art and craft. Current copyright laws are designed to protect the artistic and intellectual output of an individual over a period of several decades, but not ancient and typically communal ownership of cultural expressions.

In terms of consumer law, the ACCC can take action against a company for intentionally misleading its customers about authenticity through the use of information such as labels. It cannot take action however for imitation products that are not explicitly claiming to be authentic.

First Nations cultural expressions will likely need a new and separate framework to be protected under law. The committee understands that this would be a long and complex task but believes that it is achievable and that a consultation process should be started next year.

The issue of labelling was one that came up often during the inquiry. There is currently no consistent labelling used for any type of art or craft product, whether Indigenous or not, and no legal requirement to indicate whether something is authentic. 

This lack of any consistency or coherency in how First Nations art and craft items such as souvenirs are marked at the point of sale contributes greatly to the current lack of awareness about authenticity. 

The committee welcomes the new digital labelling trial for First Nations artworks to be administered by Desart with government funding support, and awaits the results with interest.

Also of great interest to the committee will be the outcomes of the current Australia Council inquiry into the feasibility of a National Indigenous Art and Cultural Authority. The committee would welcome the establishment of this body and believes that it would play an important future role in deliberating and advising on the issues raised in this inquiry.

Solutions

The committee has made eight recommendations to the Government that it believes will severely curtail the prevalence of imitation Indigenous art and create economic opportunities for First Nations artists and communities. The intention is to chart a path forward to foster and preserve authentic First Nations cultural expressions for the benefit of all Australians.

These recommendations are also intended to start an earnest conversation among Federal, State and Territory policymakers about the harm caused by inauthentic First Nations art and craft.

The committee recommends the following:

• That the Productivity Commission conducts a comprehensive structural analysis of the entire market for First Nations art and craft. It will be difficult for policymakers to be effective in the future without this information.  

• That the Indigenous Art Code be properly funded and a review take place after two years to determine whether this voluntary code of conduct is being effective or whether a mandatory system should be considered. 

• That a separate arm of the existing Indigenous Business Sector Strategy be created for First Nations art centres to build their capacity. 

• That an Information Standard be developed for authentic First Nations art and crafts. 

• That an information guide on authentic art and crafts be developed as a short video presentation to all passengers arriving into Australia. 

• That a Certification Trade Mark scheme for authentic First Nations art and crafts be developed by IP Australia in consultation with all relevant stakeholders. 

• That funding be made available through the Indigenous Visual Arts Industry Support program to assist artists and art centres affected by carpetbagging. 

• That a consultation process be initiated to develop stand-alone legislation protecting Indigenous Cultural Intellectual Property, including traditional knowledge and cultural expressions

Labelling and Fish-oil Burp-back

A "salutary warning against the perils" of misleading labelling?

In Nature's Care Manufacture Pty Ltd v Australian Made Campaign Limited [2018] FCA 1936 Perram J comments

When is it permissible to claim that goods manufactured in Australia from ingredients sourced from overseas are ‘Made in Australia’? That is the question in this case. The Applicant is a manufacturer of complementary medicines. One of its product lines is a soft-gel capsule marketed as ‘Fish Oil + Vitamin D’ which is marketed to the public by the Applicant under its ‘Healthy Care Australia’ brand ... 

For present purposes three aspects of the label should be noted. First, it bears the well-known ‘Australian made and owned’ kangaroo logo (‘Logo’) on the bottom right. Secondly, it indicates that each capsule contains 1g of fish oil and 5µg of vitamin D. Thirdly, it is consistent with a label which suggests that what is inside the jar is fish oil and vitamin D. 

The issues in this case concern the Applicant’s claim by its use of the Logo that the capsules are made in Australia. The Logo is a registered certification trade mark owned by the Respondent who is responsible for regulating its use including by the issue of 12-month renewable licences which allow businesses to use the Logo. The Applicant has been licensed to use the mark in relation to a number of its products since 2012 including in respect of its Healthy Care Fish Oil and Vitamin D capsules. For reasons to which I will briefly return at the end of these reasons, the Respondent does not accept that the Applicant’s Fish Oil and Vitamin D capsules are manufactured in Australia and has indicated that it does not propose to licence the Applicant to use the Logo on the relevant products after 31 December 2018. 

The Applicant does not agree with the Respondent’s position and now seeks declaratory relief which would vindicate its view that its capsules are made in Australia. The Respondent’s position is, to a large extent, driven by views published by the Australian Competition and Consumer Commission (‘ACCC’) about when a claim that a product is manufactured in Australia may be made. As a result, the ACCC intervened to make substantive submissions and the Respondent filed a submitting notice. 

The central issue in this case is, therefore, whether it is accurate to say that the capsules are made in Australia. It arises this way. The fish oil is imported into Australia by the Applicant from Chile in 200kg drums. Fish oil is a pale yellow oil with a vague but distasteful odour of fish. The vitamin D (more precisely, vitamin D3 or ‘Coleralciferol’) is imported from China in 25kg or 1kg drums. It is a white crystalline powder with no odour according to the parties’ witnesses. Having smelt Exhibit MX-4 (Vitamin D3 Sample) I am not sure I agree but this is of no moment. 

The soft-gel capsules (into which the fish oil and vitamin D would be eventually inserted) were made from gelatine sheets which were themselves manufactured from gelatine powder, purified water and glycerol. The glycerol is imported from Indonesia in 220kg drums but the water and the gelatine powder were sourced in Australia. 

It will be seen that the Applicant’s product is quite cosmopolitan in terms of the sources of its constituent elements. However, those elements are put together in Australia by the Applicant.

The Court goes on to state

The Australian Consumer Law (‘ACL’) is contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth). The ACL includes a number of prohibitions on engaging in misleading and deceptive conduct. Amongst these is the central prohibition in s 18 (‘A person shall not, in trade or commerce, engage in conduct which is misleading or deceptive or likely to mislead or deceive’). There are other prohibitions of a more specific nature but these may be disregarded for present purposes. 

The ACL contains a number of rules about specific conduct which is taken not to be a breach of s 18 (and the other related prohibitions). One of these rules insulates claims that particular goods were manufactured in a particular country. Provided its requirements are satisfied such a claim is taken not have been a breach of s 18 et al. Because of its operation in rescuing conduct from being subject to s 18 et al, provisions of this kind are frequently referred to as safe harbour provisions. The relevant safe harbour provision is s 255. ... 

one can only represent that one’s goods are made in Australia if the goods ‘were last substantially transformed’ in Australia and the effect of s 255(2)(b) is that goods will only be ‘substantially transformed’ in Australia if it can be said – and these are the critical words in the case – that: 

"...as a result of one or more processes undertaken in [Australia], the goods are fundamentally different in identity, nature or essential character from all of their ingredients or components that were imported into [Australia]." 

This requires a comparison between the ‘ingredients’ which were imported and the goods which were produced as a result of the ‘processes undertaken’. The comparison requires one to ask whether the manufactured goods differ ‘fundamentally’ from the imported ingredients ‘in identity, nature or essential character’.

Perram J states

I do not accept that there is any change in any of the qualities of the fish oil as a result of its mixing with the vitamin D3. It is still, when all is said and done, fish oil and there is no chemical change to its molecular structure or fundamental change to its chemical qualities. I also do not accept that there is any change to the vitamin D3. There was a hint at the start of the case than an argument might have been pursued that the solution of vitamin D3 into the fish oil improved the bioavailability of the vitamin D3. However, Professor Barrow gave evidence to the contrary and the point was not thereafter pursued. I therefore accept that the vitamin D3 which is imported into Australia is the same as the vitamin D3 which is found in the fish oil within the capsules. ...

The Court notes

I find that the fish oil imported from Chile smells unpleasant. I was provided with a sample of this fish oil as Exhibit MX-3 and have smelt it. It is smells like a cross between stale fish and vinyl. My associate thinks it smells like semi-fermented grass cuttings revealing his more sophisticated nose. I have not tasted it but I am prepared to infer that it would be very unpleasant to consume even in small doses. I also accept that placing the fish oil in the soft-gel capsules has the effect of making palatable and flavourless a product which is essentially very unpleasant. It has another benefit too. By sealing the fish oil in the capsules the speed of oxidation is reduced and, along with that, the rate of deterioration in the fish oil caused by exposure to light. This is not the case with the liquid fish oil imported from Chile. ... 

In one of those paragraphs that delight law students Perram J then states

There is a related issue. Professor Barrow properly drew my attention to the phenomenon of ‘burp-back’. ‘Burp-back’ occurs when a soft-gel capsule containing something malodorous such as fish oil is consumed. Once the capsule descends into the digestive depths of the stomach the soft-gel dissolves releasing its noxious payload the odour of which, thus liberated, rises up the gullet to the mouth where, unsought and unwelcome, it presents itself as a salutary warning against the perils of belching. Professor Barrow succinctly described it as ‘unpleasant fishy burping’. Just because the soft-gel fails in the inhospitable regions of the upper reaches of the alimentary canal does not mean that for many people the capsule is not effective to protect them from the smell of the fish oil. It does mean, however, that it cannot be entirely correct to say that encapsulation has changed the nature of the fish oil so that its odour is no longer present. It can be present when the fish oil is extracted from the capsules and it may emerge if a consumer should burp. 

Onwards!

So the question is whether in light of those findings one can say that the capsules ‘are fundamentally different in identity, nature or essential character’ from the fish oil, vitamin D3 and glycerol which were imported in Australia. This is a question of statutory interpretation. I take the position to be that one starts, as a beginning point, with the ordinary meaning of the words on the page and asks whether some other meaning is required by the statutory context where that concept includes, if they throw any light on the issue, the text and architecture of the surrounding statute, the legislative history and other extrinsic materials such as second reading speeches and explanatory memoranda: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 91 ALJR 936 at 940-941 [14], citing CIC Insurance Limited v Bankstown Football Club Limited [1997] HCA 2; 187 CLR 384 at 408.

Perram J concludes -

The application of s 255(2)(b) to the facts  

What s 255(2)(b) requires is a fundamental change in the essential characteristics of the imported ingredients collectively when compared to the manufactured goods. In a sense this makes no strict sense because it is impossible to compare the essential characteristics of a combined good with the essential characteristics of each of its constituent elements in the same way that it is idle to ask whether a car is a tyre. In this case, for example, it is nonsensical to ask whether the capsules differed in their essential characteristics from the glycerol. Plainly a capsule containing fish oil and vitamin D is fundamentally different to a barrel of glycerol. However, what is required by s 255(2)(b) is an overall assessment: the manufactured goods must be compared to the imported ingredients collectively and an overall opinion formed as to whether they are fundamentally different in nature, identity or essential character. 

In this case, the answer to that question is clear. The fish oil and vitamin D3 in the capsules is identical to the fish oil imported from Chile and the vitamin D3 imported from China. The only differences between the capsules and the fish oil and vitamin D3 are: (a) the fish oil and vitamin D3 are mixed together with no chemical change to either; (b) the capsules generally conceal the bad flavour of the fish oil (although not invariably as in some circumstances the capsule is deliberately pierced and there remains the ever-present threat of burp-back); (c) the capsules provide an easy means of delivering a 5µg dose of vitamin D3 which could not practically be achieved using the substance in its raw crystalline form; (d) the capsule retards the oxidation and degradation of the fish oil; and (e) the capsule is made from gelatine sheets. 

However, those matters do not establish that the capsules are fundamentally different to the fish oil or vitamin D3 which were imported in their nature, identity or essential character. Far from it. What was imported from Chile and China was fish oil and vitamin D3. What is being sold is as is what is being marketed, that is capsules containing ‘Fish Oil and Vitamin D’. 

That leaves the question of the glycerol. I accept that the glycerol is fundamentally different in nature in the capsules to the form it was in when imported from Indonesia as a liquid in a drum. It is now part of a gel. However, when viewed overall I do not regard the role of the glycerol as being significant. Granted that the glycerol has been substantially altered, I do not accept that, overall, the capsules are fundamentally different in their nature identity or essential character from the fish oil, vitamin D3 and glycerol imported into Australia. 

8. Result 

The safe harbour is therefore not available and the claims made by the Applicant are not protected by s 255 of the ACL. That conclusion is sufficient to dispose of the proceeding which should be dismissed. 

Had I been satisfied that s 255 did protect the Applicant’s claim to be made in Australia I would have been satisfied of its entitlement to declaratory relief. Very briefly the reasons for this are that the Respondent has indicated it will not continue to licence the Applicant to use the Logo if to do so would be contrary to the views of the ACCC. The ACCC publicly indicated in March 2018 that it does not accept that the encapsulation of imported substances fell within the safe harbour provisions even with the addition of bulking oils. It gave the particular example of a capsule of imported krill oil as a good which would not satisfy the test and also rejected the view that it would make any difference if the gelatine casing were itself made from imported gelatine. The consequence of that stance was that the Respondent will not licence the Applicant beyond 31 December 2018 to use the Logo unless the Applicant is able to reverse the ACCC’s position. For that reason, I would have granted the relief sought had I reached the opposite view about the operation of s 255(2)(b). 

In the US there has been cheering news for people disquieted about 'recreational' (aka junk) medicine, with news that Goop, Inc. has settled a Californian consumer protection lawsuit regarding three 'Wellness Products'. Yes, celebrities do need to be careful about claims relating to vaginal eggs and magical essences.

The Deputy District Attorney media release states

 Goop, Inc. has settled a consumer protection lawsuit filed by Santa Clara County District Attorney Jeff Rosen and nine other state prosecutors alleging that Gwyneth Paltrow’s wellness empire sold a series of women’s health products whose advertised medical claims were not supported by competent and reliable science. 

The suit was based on unsupported attributes for Goop’s Jade Egg, Rose Quartz Egg, and Inner Judge Flower Essence Blend. 

Goop advertised that the Jade and Rose Quartz eggs — egg-shaped stones designed to be inserted vaginally and left in for various lengths of time — could balance hormones, regulate menstrual cycles, prevent uterine prolapse, and increase bladder control. Goop advertised that the Inner Judge Flower Essence Blend, a blend of essential oils meant be taken orally or added to bathwater, could help prevent depression. xxx “The health and money of Santa Clara County residents should never be put at risk by misleading advertising,” District Attorney Jeff Rosen said. “We will vigilantly protect consumers against companies that promise health benefits without the support of good science…or any science.” 

Goop has offered to refund the full purchase price to any consumer who purchased the Jade Egg, Rose Quartz Egg, and/or Inner Judge Flower Essence Blend on or between January 12, 2017 and August 31, 2017. ... 

The judgment includes provisions prohibiting Goop from: 

(1) making any claims regarding the efficacy or effects of any of its products without possessing competent and reliable scientific evidence that substantiates the claims; and 

(2) manufacturing or selling any misbranded, unapproved, or falsely advertised medical devices.

Under the terms of the stipulated judgment, Goop agreed to pay $145,000 in civil penalties.

The eggs and other products are still on sale.