Contributed by Odia Kagan.

This blog has discussed the importance of ensuring and auditing your vendors’ data security practices. A recent enforcement action from the Federal Trade Commission (FTC) drives home the importance of being proactive about vendors and data security.

Specifically, the FTC recently entered into an enforcement action with an analytics company

The Federal Trade Commission (“FTC”) has requested public comments on its Trade Regulation Rule entitled “Disclosure Requirements and Prohibitions Concerning Franchising” (the “Rule”). The Rule makes it an unfair or deceptive act or practice for franchisors to fail to give prospective franchisees a Franchise Disclosure Document, which is required to provide certain specific information about

Contributed by Ted Jobes, Chair of Fox Rothschild’s Anti-Trust Practice Group

62267877 - a wrod cloud of brand licensing related items
62267877 – a word cloud of brand licensing related items

Updating policies that had been on the books for more than two decades, the U.S. Department of Justice and the Federal Trade Commission has issued new Antitrust Guidelines for the Licensing of Intellectual Property that replace guidelines issued by the same agencies in April 1995. Such guidelines state the antitrust enforcement policy of the agencies relating to the licensing of intellectual property protected by patent, copyright and trade secret law, and of know-how. They do not cover the antitrust treatment of trademarks.

These modernized guidelines will be fundamental to the agencies’ review and analysis of the licensing of intellectual property rights and provide guidance to businesses and the public about the agencies’ enforcement approach to intellectual property licensing. The agencies had announced the proposed update of the guidelines and made a draft available for public comment in August 2016. During a 45-day comment period, the agencies received comments from academics, industry, law associations and nonprofit organizations. After considering the comments, the agencies have revised and promulgated the Guidelines.

The 2017 guidelines embody three general principles for the purpose of antitrust analysis, stating that the agencies:

  • Apply the same analysis to conduct involving intellectual property as to conduct involving other forms of property, taking into account the specific characteristics of a particular property right;
  • Do not presume that intellectual property creates market power in the antitrust context; and
  • Recognize that intellectual property licensing allows businesses to combine complementary factors of production and is generally procompetitive.

The guidelines contain a number of substantive changes which reflect changes in the law since the 1995 guidelines were issued. In particular, they reflect a number of significant changes in statutory and case law, and intervening changes in enforcement and policy work, including the 2010 Horizontal Merger Guidelines promulgated by the Department of Justice and the Federal Trade Commission. Among other changes, the 2017 guidelines revise the treatment of resale price maintenance provisions in intellectual property licensing agreements, include updates concerning market definitions and market power, and contain changes relating to situations where an intellectual property license or transfer will be treated as a merger.


Continue Reading First Time in over 20 Years: The DOJ and FTC Have Updated their Antitrust Guidelines for the Licensing of IP

Last June we blogged about a lawsuit that ended favorably for a franchisor.  In Braatz, LLC v. Red Mango FC, LLC, the trial court determined that a franchisor did not violate Wisconsin’s “14-day Rule”, which requires franchisors to provide an “offering circular” (aka FDD) to prospects 14 days before selling a franchise.  3:14-CV-4516-G (N.D.

The Federal Trade Commission (FTC) this week amended its rules under the Fair Packaging and Labeling Act (FPLA), which requires certain products to carry labels identifying the contents, source, item quantity, and other information to help consumers compare products.   The changes include:

Copyright: ragsac / 123RF Stock Photo
Copyright: ragsac / 123RF Stock Photo
  1. Modernizing

Aaron’s, a national Rent-to-Own retail store with approximately 1,300 corporate locations and 700 franchised locations, recently reached a consent agreement (pdf) with the Federal Trade Commission (“FTC”) respecting its privacy practices.  Specifically, the FTC had filed a complaint against Aaron’s for violation of section 5 of the FTC Act, 15 U.S.C. section 45(a).

The FTC’s