USCIB Urges Reversal of 1-800 Contacts FTC Ruling

USCIB filed an amicus brief with regards to 1-800 Contacts, Inc. case to highlight the challenges American businesses would face under the recent Federal Trade Commission’s (FTC) decision’s approach to antitrust liability for trademark settlements, and explain the potential negative impacts the decision would have on businesses, consumers and competition if left to stand.

USCIB General Counsel Nancy Thevenin led the process for USCIB. “The Commission’s decision creates substantial uncertainty regarding the enforcement and settlement of intellectual property rights, increases the risk of arbitrary enforcement against even routine settlements, and potentially exposes settlements to such risk for decades,” warned Thevenin. “The decision should be reversed.”

Earlier this year, the FTC decided to impose antitrust liability against 1-800 Contacts, the largest online retailer of contact lenses in the U.S., on the basis that 1-800 Contacts’ settlements of trademark infringing lawsuits against at least fourteen competing online contact lens retailers restricted trade. Among other things, USCIB’s amicus argues that the Commission’s decision ignores the critical importance to business of intellectual property rights and its enforcement and would unfairly require the lawful exercise of such rights to a higher pro-competition standard.

USCIB thanks Eileen M. Cole, Bryant D. Gant and Seiji Niwa of member firm White & Case for their work with the amicus.

 

Staff Contact:   Nancy Thevenin

General Counsel
Tel: 212.703.5047

Nancy Thevenin supports the USCIB Arbitration Committee and coordinates the work of the U.S. Nominations Committee. She works closely with USCIB’s Business Development team in ensuring a more comprehensive policy, legal and arbitration membership outreach to both law firms and corporations. Thevenin previously served as deputy director of the ICC Court of Arbitration’s North American marketing office. During her tenure, the group helped launch the ICC International Mediation Competition and developed USCIB Young Arbitrators Forum (YAF), with Thevenin drafting the proposal for the ICC to make YAF a global organization. Nancy then joined Baker & McKenzie as a special counsel in and global coordinator of their International Arbitration Practice Group. She left Baker in 2014 to start her own practice as arbitrator and mediator and continues to teach the spring semester international commercial arbitration course at St. John’s Law School.
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