Informational Justice as the New Media Pluralism

The London School of Economics Media Policy Project has asked scholars, industry, and policymakers to reflect on this question:  what does media pluralism policy look like in the digital age?

My contribution argues that we need to have a broader conception of informational justice that encompasses all the ways people circulate information and are influenced by the structure and practices of digital media.  I focus on algorithmic authority and algorithmic magnetism as two forces that shape our information environment in unseen ways.

In the United States, media pluralism or media diversity remains the realm of biennial FCC reviews of media ownership rules.  The same policy considerations arise when we have a merger review, as in the case of Comcast and Time Warner.  This focus on the ownership of communications infrastructure may be too acute in some instances and too narrow in others.  Big data and digital intermediaries are increasingly shaping the way public discourse happens.

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Oral argument in 1st appellate case to consider payment under Actavis

In FTC v. Actavis, the Supreme Court held that a brand payment to a generic to delay entering the market could have “significant anticompetitive effects” and violate the antitrust laws. In a narrow, formalistic ruling, the New Jersey district court in In re Lamictal held that such payments were limited to cash. On November 19, 2014, the Third Circuit is hearing oral arguments in the case.

I filed a brief on behalf of 53 professors, the American Antitrust Institute, and Consumers Union that urges reversal of this very concerning decision. Exclusion payments today take myriad forms, with roughly half taking the form of “no-authorized-generic” agreements by which a brand agrees not to launch an authorized generic during the generic’s 180-day exclusivity period. Because the launch of an authorized generic dramatically reduces the generic’s profits, a brand’s promise not to introduce one provides substantial value to the generic.

In holding that only cash payments are subject to antitrust scrutiny under Actavis, the Lamictal district court created a loophole large enough to accommodate an entire industry’s worth of supracompetitive profits and missed dosages. Nor would scrutiny of agreements like the one in this case, which provides the generic with a type of consideration it could never have obtained by winning a patent case, have any effect on legitimate settlements that fall within the boundaries of patent litigation.

This case bears close watching. For if the Third Circuit upholds the decision below, form will trump substance and brands and generics will have carte blanche to enter into anticompetitive settlements.

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How Not To Apply Actavis

One of the most pressing issues in patent and antitrust law involves agreements by which brand-name drug companies pay generic firms to delay entering the market. In FTC v. Actavis, the Supreme Court held that these settlements could violate the antitrust laws. And while the Court introduced a blueprint for analyzing the agreements, it anticipated that the lower courts would play a crucial role in elaborating the framework.

Along these lines, two recent district court decisions portend ominous difficulties for this area. In fact, if the rulings in In re Lamictal Direct Purchaser Antitrust Litigation and In re Loestrin 24 FE Antitrust Litigation are affirmed and adopted by other courts, plaintiffs will face nearly insurmountable hurdles, rendering the landmark Actavis decision nothing more than a dead letter. In this essay, I show that the Lamictal and Loestrin courts erred in (1) applying a framework never anticipated in Actavis, (2) ignoring crucial holdings from Actavis, and (3) amassing unjustified powers for themselves.

In blocking affordable generic prescription drugs, “exclusion payment” settlements cost consumers billions of dollars and have profound consequences for public health. But if the trend unleashed by the Lamictal and Loestrin cases is not quickly reversed, courts will be relegated to the role of traffic cops waving anticompetitive settlements through flashing green lights of judicial “scrutiny.”

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Converse Hopes Red Soles Can Protect Chuck Taylor

By Marc Logan (Rutgers-Camden Law Class of 2015)

We are all familiar with Converse, the iconic fashion brand known for its Chuck Taylor sneaker. Chuck Taylors have become instantly recognizable throughout the world for their distinctive features: rubber, half-moon toecap, rubber toe bumper, unique stitching, and stripes that run along the bottom of the shoes.

On October 14th, Converse asked its followers on Twitter, “Ever wondered what makes a Chuck a Chuck? #converse #allstar”. Converse had complex motivations for making the inquiry. On the same morning, Converse filed a trademark infringement lawsuit in the Eastern District of New York, against Walmart, Kmart, Skechers, and twenty-eight other parties that they believe are “mass-producing, distributing or selling sneakers that knock off the look of Converse’s iconic Chuck Taylor.”

In the classic trademark infringement lawsuit, a party claims that another is using, for example, its logo, or labeling on a product without proper authorization. Here, however, Converse claims that the various parties are impermissibly using the physical Chuck Taylor design elements. Claims of this nature fall into a category of trademark law known as “trade dress”. Trade dress concerns design aspects of a particular product, including packaging, or overall presentation, which may identify the brand to consumers. Typically product design elements only receive trademark protection after they have acquired “secondary meaning”, or in other words have adopted a level of distinctiveness that makes them a definitive source indicator (e.g. Tiffany’s blue box with white ribbon).

Converse’s claims come from a concern that the various parties involved are producing shoes that are too similar to the Chuck Taylor. The company fears that the knock-off shoes will confuse and mislead consumers, and that their sale could harm the strong reputation of the Converse brand. For example, Skechers “Daddy’s Money” line, which is marketed to teenaged girls, has drawn a lot of public criticism. Parents have called the line “totally sexist” and argued that it sends a dangerous message to our youth. The shoes contain several features of the Chuck Taylor, which could lead to consumers mistaking them for Converse – something Converse clearly wants to avoid.

This type of trademark case is not unheard of in the fashion world. In 2012 Christian Louboutin brought a similar lawsuit against Yves Saint Laurent regarding the use of lacquered red soles on high fashion women’s shoes. In that case the question was whether red soles on women’s shoes could be easily associated with the Christian Louboutin brand. The court determined that it could, based on how strong, and distinctive, the brand has become in the fashion market. Since consumers can look at high fashion women’s shoes with red soles and confidently say, “Those are Louboutin’s”, the court believed that the shoes had acquired the secondary meaning necessary for trademark protection (unless the entire shoe is red).

Converse has a strong case based on this reasoning. The brand has been around for over 100 years, and has acquired a great deal of recognition. To this day the Chuck Taylor remains its flagship product, and is perhaps one of the most popular sneakers of all time. It can be argued that, much like a red sole could be easily associated with Christian Louboutin, the collective design elements of the Chuck Taylor could easily be associated with Converse. Many consumers may look at a sneaker composed of the Converse design elements and say, “Those are Chucks.”

Of course, many other brands have released shoes with similar styles over the years. This gives rise to an argument that the Chuck Taylor look has lost distinctiveness, and has become generic to an extent. However, it could be difficult for the court to determine where exactly that line should be drawn. Regardless, it appears Converse still holds a strong position in this dispute due to the obvious strength of the brand and recognition of the product.

Due to advances in technology, including the increasing speed of production and information, and the general public’s lack of knowledge about intellectual property laws, copying in the fashion world has become more prevalent than ever, and brands are becoming increasingly aware that unauthorized copying is occurring. For iconic brands like Converse, the decision in the Christian Louboutin case is refreshing. It allows the company to protect its brand more confidently in a space that has struggled for adequate intellectual property protection. A favorable outcome would serve as yet another precedent that fashion houses can look to in the future for support, and it would certainly assist in the overarching battle against unauthorized copying.

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