Consumer Law & Policy Blog

Will Political Appointees in the Department of Commerce Prevent the Trump Campaign from Registering a Trademark in Opponents' Slogan?

by Paul Alan Levy

During the 2016 election cycle, the slogan “Keep America Great” emerged as a counterweight to the Make America Great Again slogan on which candidate Donald Trump was campaigning.  A fellow named Andreas Mueller tried to capitalize on that development by reserving the slogan as his own trademark.  The Trademark Office, properly in my view, rejected Mueller’s effort on the ground that political slogans cannot be taken out of the public domain through the trademarking process. 

Its initial rejection was supported by several images showing widespread use of the slogan by various vendors of shirts, hats, and mugs -- even a cell phone case

but its subsequent action (after Mueller tried to respond to the initial rejection) was more definitive: “Registration is refused because the applied-for mark merely conveys an informational social, political, religious, or similar kind of message . . .  Slogans or terms that merely convey an informational message are not registrable. . . . [T]he applicant’s slogan is commonly used as a counter to the “Make America Great Again” phrase, and thus functions to advocate for openness and inclusiveness, among other things.  Because consumers are accustomed to seeing this slogan or term commonly used in everyday speech by many different sources, the public will not perceive the term or slogan as a trademark or service mark that identifies the source of applicant’s goods and/or services but rather only as conveying an informational message.”

Late last week, however, the Trump for President filed its own trademark application, indicating that it intends to adopt the slogan as its own (and, thus, prevent other people from using it).  Leaving aside how America became great again even before the candidate claiming that he was needed to restore its greatness took office, it remains to be seen whether Trump’s Commerce Department appointees stand up to their boss and declare that sauce for the goose is sauce for the gander.

State AG's also intervene to defend Dep't of Ed in accreditation suit

In addition to intervention in the suit mentioned by Jeff (below), 6 state attorneys general today moved to intervene in a federal district court case against the Accrediting Council for Independent Colleges and Schools (ACICS), an accreditor of for-profit colleges. The suit is a challenge by ACICS to the Department of Education decision to terminate ACICS’s recognition as an accreditor in December 2016. The states say that they are intervening "to protect consumers in their states, who rely on federally-recognized accreditors to ensure that colleges offer quality education and protect against abusive practices."

The Department's actions follwoed an investigtaion pursuant to which it concluded that ACICS failed to meet the requirements of federal recognition. ACICS has a long track record of failures of oversight. ACICS failed to identify misconduct by a number of schools and failed to take action once the misconduct came to light through investigations by state or federal agencies. 

The states moving to intervene are Massachusetts, Illinois, Maine, Maryland, and New York, along with the District Of Columbia.

The motion to intervene is here. The memorandum in support of the motion is here.

AP: Democratic state AGs move to defend consumer watchdog

Here.  The motion to intervene in the PHH case is here.

 

Ken Cuccinelli Column: Reforming CFPB isn't enough. Eliminate it. [Proposes Solution that Led to the Great Recession]

by Jeff Sovern

Here, in the American Banker (free content). Cuccinellis is general counsel to the FreedomWorks Regulatory Action Center, and former AG for Virginia. Excerpt:

Rather than tinkering with this regulatory monstrosity, let’s pursue a simpler course: simply eliminate the standalone agency. Most of the regulatory powers that the CFPB now wields were previously under the jurisdiction of other departments and agencies. These entities often specialized in the specific industry being regulated; thus, they were more capable of informed, responsible action than the CFPB.

I guess he forgot that that course led to the Great Recession. 

Trump Names as FCC Chair Ajit Pai, Critic of FCC TCPA Interpretations

Here. Pai, a Republican, has been critical of FCC interpretations of the TCPA (see here and here). Here's the perspective of ACA International, an industry organization :

Of particular importance to the credit and collection industry, Pai has fiercely objected to the FCC’s more recent interpretations of the TCPA spearheaded by Wheeler.  Authoring a hard-hitting dissent of the July 2015 TCPA Declaratory Ruling and Order, Pai highlighted the rampant litigation abuse spawned by the TCPA and laid out in detail the legal failings of the majority’s ruling.  In fact, during the oral argument for ACA’s consolidated appeal of the 2015 TCPA Ruling, Pai’s dissent was repeatedly referenced.

"CFPB Orders Citi Subsidiaries to Pay $28.8 Million for Giving the Runaround to Borrowers Trying to Save Their Homes"

The Consumer Financial Protection Bureau is still at work.

Yesterday, the CFPB took separate actions against CitiFinancial Servicing and CitiMortgage, Inc. "for giving the runaround to struggling homeowners seeking options to save their homes. The mortgage servicers kept borrowers in the dark about options to avoid foreclosure or burdened them with excessive paperwork demands in applying for foreclosure relief. The CFPB is requiring CitiMortgage to pay an estimated $17 million to compensate wronged consumers, and pay a civil penalty of $3 million; and requiring CitiFinancial Services to refund approximately $4.4 million to consumers, and pay a civil penalty of $4.4 million."

The CFPB's full press release is here.

WH Press Secretary Spicer: "No Decision" on Cordray

So reports Law360's Evan Weinberger on Twitter here. 

New study tells inside story of how local communities use ordinances to say ‘enough’ to payday lenders

Here's the press release:

 Jan. 24, 2017— An 18-month study of community approaches to controlling payday lending practices concludes there are 10 lessons for those interested in positively affecting local ordinances, according to researchers from the University of Utah and University of New Mexico.

In “The Power of Community Action: Anti-Payday Loan Ordinances in Three Metropolitan Areas,” researchers Robert N. Mayer and Nathalie Martin document how local communities positively organize to control payday lending in their jurisdictions and thereby create important legal change.

Mayer is a professor of family and consumer studies at the University of Utah and Martin is a professor at the University of New Mexico School of Law.

“We hope this study will galvanize local communities and show them how they can make a difference in changing the law and society as a whole,” Martin said.

Payday loans, which are borrowed against future paychecks and can carry interest rates of 400 percent or more, often strip wealth from society’s most economically vulnerable individuals and communities. These loan outlets now outnumber all McDonald’s, Burger King, Starbucks and Walgreens stores combined. In states where legislative controls are weak — and in the absence of federal regulations — some local governments have stepped forward to address the problems caused by high-cost, predatory payday loans.

The researchers traveled to three regions — Silicon Valley in Northern California; Greater Metropolitan Dallas in Texas; and Greater Salt Lake City in Utah — to see how local entities have produced numerous ordinances aimed at halting the spread of payday lending. The locations were chosen for their diverse demographic, cultural, political and legal characteristics.

New 3d Circuit opinion on Fair Credit Reporting Act (standing)

On Friday, the Third Circuit issued a decision in In re Horizon Healthcare Services Inc. Data Breach Litigation.  In that case, the plaintiffs sued after two laptops, containing sensitive personal information about them and others, were stolen from health insurer Horizon Healthcare Services, Inc. The plaintiffs alleged willful and negligent violations of the Fair Credit Reporting Act, as well as violations of state law, premised on the claim that Horizon inadequately protected their personal information. The district court dismissed the suit for lack of Article III standing. That court reasoned that none of the plaintiffs claimed a cognizable injury because, although their personal information had been stolen, none of them had adequately alleged that the information was actually used to their detriment. The Third Circuit Court of Appeals vacated and remanded the case back to the district court. It explained: “In light of the congressional decision to create a remedy for the unauthorized transfer of personal information, a violation of FCRA gives rise to an injury sufficient for Article III standing purposes. Even without evidence that the Plaintiffs’ information was in fact used improperly, the alleged disclosure of their personal information created a de facto injury. Accordingly, all of the Plaintiffs suffered a cognizable injury, and the Complaint should not have been dismissed.”

The opinion is here.

New 9th Circuit opinion on Fair Credit Reporting Act

On Friday, the Ninth Circuit Court of Appeals, deciding an issue of first impression in the federal courts of appeals, held that a prospective employer violates the Fair Credit Reporting Act by providing a job applicant with a disclosure that “a consumer report may be obtained for employment purposes” that simultaneously serves as a liability waiver for the prospective employer and others. The panel also held that, in light of the clear statutory language that the disclosure document consist “solely” of the disclosure, a prospective employer’s violation of the Act is “willful” when the employer includes terms in addition to the disclosure, such as the liability waiver here, before procuring a consumer report or causing one to be procured.

The opinion in the case, called Syed v. M-I, LLC, is here.