Category Archives: Advertising Law

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Second Circuit Clarifies the Use of Legal Presumptions of Consumer Confusion and Injury in Certain Lanham Act Cases

On Tuesday, July 29, the United States Court of Appeals for the Second Circuit “clarified certain aspects of [its] false advertising jurisprudence” and held that, where literal falsity and deliberate deception have been proved in a market with only two players, it is appropriate to use legal presumptions of consumer confusion and injury for the purposes … Continue Reading

False Advertising and Antitrust Law: Sometimes the Twain Should Meet

Imagine that a drug manufacturer figured out how to compete with a blockbuster drug by making a cheaper and more effective alternative. The pharmaceutical company that makes the blockbuster drug starts flooding the market with false advertisements about the safety of the alternative drug before it is even available to consumers, effectively taking away the … Continue Reading

Was AdChoices Just Flipped the (Twitter)Bird on Behavioral Targeting?

It appears that users won’t be seeing the blue AdChoices triangle icon on Twitter anytime soon. AdChoices and its blue triangle icon are the work of the Digital Advertising Alliance (a consortium of trade groups) to provide users with disclosure of and the ability to opt out of targeted behavioral advertising (e.g. ads based on … Continue Reading

‘Do Not Call’ Violations Lead to $7.5 Million Civil Penalty

On Thursday, June 27, 2013, the Federal Trade Commission (“FTC”) announced that Mortgage Investors Corporation of Ohio, Inc. (“Mortgage Investors”) will pay a $7.5 million civil penalty for alleged violations of the Telemarketing Sales Rule (“TSR”). This settlement marks the largest fine that the FTC has ever collected for TSR violations and cleverly coincides with … Continue Reading

Proposition 37 Permits “Natural” Labeling for Non-GMO Processed Food

Proposition 37, the California Right to Know Genetically Engineered Food Act ("Prop 37”), if approved by the voters on November 6, 2012, will provide that food offered for retail sale in California produced with genetic engineering (“GMO food”) is misbranded unless clearly labeled to say it is genetically engineered. Prop 37 also provides that GMO … Continue Reading

Third Circuit Issues Decision in New Jersey Gift Card Escheat Suit

By Craig Cardon, Brian Anderson, Rachel Hudson.   On January 5, 2011, the Third Circuit issued its decision in New Jersey Retail Merchants Association v. Sidamon-Eristoff, Case No. 10-4551 (3d Cir. Jan. 5, 2012). The appellate court affirmed the decision of the District Court partially granting and partially denying a motion for a preliminary injunction … Continue Reading

Who’s Right On Privacy?

Advertisers are constantly looking for new ways to obtain more information from and about online consumers in an effort to provide a more enriching and satisfying online experience for the consumer.  At the same time, consumers are becoming more and more knowledgeable about the online collection of their information and are finding new ways to … Continue Reading

FCC Approves Controversial Net Neutrality Rules

On December 21, 2010, the FCC approved controversial net neutrality rules in a party-line vote. Democratic Commissioners Copps and Clyburn joined Chairman Genachowski in approving the Order, despite concerns that it did not go far enough. Republican Commissioners McDowell and Baker wrote lengthy dissents, arguing that the FCC had stepped far beyond its regulatory authority in approving … Continue Reading

Stealing the Show?

The image of 36 women wearing skimpy orange dresses at a World Cup soccer match last June raised the ire of Fédération Internationale de Football Association ("FIFA"), which had two of the women arrested for organizing the ambush marketing stunt on behalf of Dutch beer brewer Bavaria. Meanwhile, Nike’s "Write the Future" soccer-themed commercial, which … Continue Reading

California Data Breach Notification Law Vetoed

This week the Governor of California vetoed what would have been a landmark law on data breach notification. The law sought to strengthen the notification required when databases of personal information are compromised. California’s existing data breach law, which will continue unamended, requires companies and state government agencies to notify individuals when their personal information … Continue Reading

Why Every Business Should Have A Social Media Policy

Words matter. Words can come back and bite you. Think before you speak. These are all self-evident truths that no one is likely to dispute. Yet, we continue to see examples of people, who should know better, doing just the opposite. This is especially true in the context of electronic communications – first, in work emails, and now, on social … Continue Reading

Sometimes “Compare To” Packaging Means Just What it Says

The verdict in a recent high profile case alleging false advertising claims is significant for the store brand industry.  The case involved Perrigo Company, a producer of dietary supplements for the private label market, and Rexall Sundown, Inc.  The jury upheld the practice of communicating choice to consumers through the use of a comparison statement specifically identifying a national … Continue Reading

Efficiency v. Privacy: Is Online Behavioral Advertising Capable of Self-Regulation?

The Dilemma In what began as an innovative way to improve advertising efficiency, online behavioral advertising has spawned “Big Brother”-type fear among watch-dog groups worried about consumer privacy. According to the advertising industry’s “Self-Regulatory Principles For Online Behavioral Advertising,” online behavioral advertising is “the collection of data from a particular computer or device regarding Web viewing … Continue Reading

FDA Publishes Proposed Rule on Broadcast Direct-to-Consumer Prescription Drug Advertisement; the 4 New Standards

On March 29, 2010, FDA published a proposed rule setting forth how it would interpret the Congressionally mandated requirement that “major statements” in broadcast Director-to-Consumer (“DTC”) advertisements for prescription drugs be presented in a “clear, conspicuous and neutral manner." See proposed 21 C.F.R. § 202.1(e), 75 Fed. Reg. 15376 (March 20, 2010).    … Continue Reading

In re NCAA Student-Athlete Name & Likeness Licensing Litigation: Former Athletes Seek A Share Of NCAA Licensing Profits

The National Collegiate Athletic Association (“NCAA”) profits handsomely from the increasingly lucrative collegiate licensing and merchandising market— estimated to be worth $4 billion annually. Yet, current and former NCAA athletes do not share in these licensing fees. Two ways that the NCAA has accomplished this result are by requiring NCAA athletes to sign away their … Continue Reading

On Your Marks, Get Set…. Ambush!

  The image of Michael Phelps “swimming” across a Midwestern wheat field toward Vancouver recently raised the ire of the United States Olympic Committee (“USOC”), which characterized the image as “crossing the line.” But is the USOC’s position legally warranted, or is the image nothing more than a lawful and effective ambush marketing campaign? The … Continue Reading

Court Challenge to Maine’s New Marketing Law Fails

On September 9, 2009, a federal judge in Maine agreed with retailers, marketers, and media companies that the recently enacted Maine law "An Act To Prevent Predatory Marketing Practices Against Minors" is likely unconstitutional. Nonetheless, the judge dismissed the challenge to the Act on the ground that the state Attorney General does not intend to enforce it.  … Continue Reading

An Advertising Face-Off: Images and the Right of Publicity

The California Supreme Court will hear oral argument on June 3 in an important “right of publicity” case, Christoff v. Nestle USA Inc. Issues include whether the single publication rule applicable to mass communication-based torts applies to right of publicity claims; whether use of another’s likeness on a product label is a “publication” for purposes … Continue Reading

That’s Advertainment!

The Advertising and entertainment industries have merged.  While product placement  and brand sponsorship have been features of entertainment programs since the early days of radio, the efforts to integrate brands and brand messages into entertainment programming during the past few years have become more systematic and sophisticated than ever before. This article by Ben Mulcahy was originally published … Continue Reading
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