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Dovetailing from our recent deep dive, which provided a look at some of the most critical pieces of environmental, social, and corporate governance (“ESG”)-centric legislation in the European Union, it is worth keeping an eye on trends in the ESG litigation space, as cases in this realm are expected to continue to climb in number (and importance) this year. Speaking on a panel recently, Perkins Coie partner Brian Sylvester said that “ESG claims made against companies have gained momentum in recent years as the focus on ESG issues increase,” and likely will continue to increase ahead of regulatory efforts, such as the impending release of the updated Green Guides by the Federal Trade Commission.


Sylvester specifically pointed to companies’ use of climate-specific claims, including their marketing of themselves and/or their products as “carbon neutral,” “net zero,” etc., as well as interest among consumers in eco-friendly products and services, as driving some of the legal squabbles that have landed before courts in recent years. But beyond claims that companies are making to cater to climate-conscious consumers, Sylvester noted the failure by companies to disclose material ESG risks is giving rise to shareholder-initiated litigation, specifically, stemming from companies’ failure to provide adequate disclosures of the “environmental liabilities, supply chain risks, labor issues or climate change related risks” that come hand-in-hand with their operations. 


And speaking of ESG risk reporting, there is an interesting nexus here with artificial intelligence that is worth paying attention to. As AI, and generative AI, in particular, continues to pay an increasingly larger role in the workings of companies across industries, the issue of risk – and risk reporting – is becoming a topic of interest and importance. 

Read More Here

Some Litigation Updates …

> Thom Browne v. adidas: Amid adidas’ push for a new trial, the court is calling on both parties to submit supplemental briefings on Browne’s alleged failure to produce emails during discovery. (A timeline of that case can be found here.)

> J. Doe v. GitHub: In a couple of developments in this DCMA case over the use of computer code to train AI models, J. Doe is seeking leave to file a motion for reconsideration following a partial dismissal & GitHub and co. are seeking dismissal of the plaintiffs’ 2nd amended complaint.

> OpenAI, Inc. v. Open Artificial Intelligence, Inc: An N.D. Cal. court has granted OpenAI’s motion for a preliminary injunction in this TM infringement case.

> Reebok v. Autry: Reebok has beefed up its trademark infringement case against “copycat” Autry. (You can find the amended complaint here.)

In some deal-making news this week …

– Julie Zerbo
Founder & Editor-in-Chief

Here are TFL’s top articles of the week …

1. A Dive into Some of MSCHF’s Most Interesting, Legally-Provocative Drops. Thanks to its legally-provocative drops, MSCHF has repeatedly caught the eye of brands and their legal departments, alike.

2. Court Enforces Arbitration Award in Valentino Case Against Former Supplier. SDNY Judge Vyskocil held that Mrinalini failed to prove any grounds on which the court should refuse or defer recognition or enforcement of the final arbitration award.

3. OpenAI Pushes for Dismissal of Bulk of New York Times’ Lawsuit Claims. OpenAI and co. asked the court to toss out a number of the news publisher’s “legally infirm” claims and “focus the litigation on the core issues that really matter.” 

4. MetaBirkins Creator Argues that Lower Court Erred in Hermès Case. The SDNY erred in its application of a critical test that would have afforded his Birkin-centric “artworks” protection under the First Amendment and shielded them from Hermès’ trademark claims, per Rothschild. 

5. Off-White Urges U.S. Trademark Body to Cancel Third-Party’s SOFT WHITE Mark. Off-White is urging the TTAB to overturn a registration for SOFT WHITE, arguing that “it is or will be damaged by the registration of the mark.”

6. Spanish Court Sides with Mango in Copyright Lawsuit Over NFTs. A court in Barcelona sided with Mango in a lawsuit waged against it by the Spanish copyright society over NFTs based on the works of three well-known Catalan artists. 

7. Our February Deep Dive is here … A Look at the Landscape of ESG Legislation in the EU. The EU has been at the forefront of sustainability-centric regulation in recent years amid enduring growth of “green” products and services & a spike in ESG reporting by companies.

8. And our Running List of Key AI-Lawsuits is up to date. Two new cases come by way of Raw Story Media, Inc. and AlterNet Media, Inc., and Intercept Media, Inc.