Florida's Revised Promotions Law Prohibits Non-Profits From Offering Contests or Sweepstakes

Posted by Radiance W. Harris on April 15, 2013

By Radiance W. Harris

On April 10, 2013, Florida revised several provisions of its game promotion statute, which will likely change how for-profit brands and non-profit entities offer contests and sweepstakes within the State and to its residents. In particular, these revisions include:

• A game promotion can only be operated by a for-profit organization on a limited and occasional basis as an advertising or marketing tool in connection with and incidental to bona fide sales of consumer products or services, if no purchase is necessary to play; and

• Non-profit entities and charitable organizations cannot operate a game promotion.

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FTC issues new guidance for advertising and marketing in the online and mobile world

Posted by Radiance W. Harris on March 26, 2013

Repost from E-Commerce and Privacy Alert

By Scott W. Pink

On March 12, 2013, the Federal Trade Commission issued its long-awaited update to its 2000 guidance on disclosures in online marketing and advertising.

The guidance, entitled .com Disclosures: How to Make Effective Disclosures in Digital Advertising, not only reaffirms many of the FTC’s longstanding principles for effective online disclosures, but also provides guidance as to how those principles will be applied to new technologies that have emerged since 2000, such as mobile phones and tablets with more limited space, banner ads and multimedia messaging, and social media platforms such as Facebook and Twitter.

The FTC has broad powers under Section 5 of the FTC Act to protect consumers from “unfair and deceptive acts or practices.”i Under the FTC Act, the FTC has long required effective disclosures for claims that would otherwise be deceptive or misleading without them. .com Disclosures is designed to help businesses comply with the FTC Act by providing examples and direction on how to avoid unfair and deceptive practices through appropriate disclosures in their online and mobile marketing.

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DLA Piper Gathers in Schaumburg for IPT Retreat

Posted by Radiance W. Harris on October 29, 2012

This past weekend, over 200 DLA Piper attorneys traveled to Schaumburg, Illinois for the Intellectual Property & Technology (IPT) Practice Group Conference (“Conference”). The Conference’s theme was “Celebration and Commitment.” This three-day event focused on networking across offices, celebrating the achievements of the IPT practice, and committing to goals to expand and improve the IPT practice in 2013.

The Conference consisted of sessions on alternative fee arrangements, business development, diversity and pro bono projects, social media brand building, and team building. Of course, the highlights of the Conference were the very humorous group commercials on the DLA Piper IPT brand and the entertaining Karaoke night. We look forward to next year’s Conference!

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Dietary Supplement Industry Gets Compilation of NAD Decisions

Posted by Radiance W. Harris on September 20, 2012

By Sandra S. Pedersen

The Council for Responsible Nutrition this week released a searchable database of every National Advertising Division decision since 2007 involving advertising for dietary supplements. The database includes the decision date, challenger, advertiser, product, category of supplement, type of claim, examples of the challenged claims, and referral status. There are 140 cases included in the database, 13 of which were referred to a government agency for enforcement. The database does not otherwise include the outcome of the case, which can be obtained through subscription access to the online archive.

This helpful tool is available to the public on the Council for Responsible Nutrition's website.

Avoiding Illegal Lotteries in Social Media Promotions

Posted by Radiance W. Harris on September 12, 2012

Companies are becoming increasingly innovative in promoting and conducting contests and sweepstakes via social media sites such as Facebook, Twitter, Pinterest, and Instagram.  However, companies engaging in social media contests or sweepstakes must ensure that their promotions are in compliance with federal and states laws as well as the specific platform guidelines, and be particularly careful not to inadvertently organize their promotions as an illegal lottery.  Avoiding the creation of an illegal lottery is one of the biggest challenges of organizing a social media promotion.

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America's Next Top Model . . . Guidelines

Posted by Eunice R. Chung on July 09, 2012

Reposted from Law à la Mode, Edition 6 - Summer 2012

By Alexander S. Birkhold (New York)

The recent formation of the Model Alliance, an organization seeking to enforce and expand existing legal protections for models in the United States, has prompted increased US scrutiny of employment and image rights issues in the fashion industry.

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From the Experts: Avoid Pitfalls of Social Media Contests and Sweepstakes

Posted by Radiance W. Harris on February 28, 2012

Reposted from Corporate Counsel Magazine

By Radiance Walters and Debbie Rosenbaum

In 2012, marketing teams will spend less time defining the term “social media” for corporate executives and more resources justifying increased expenditures in cyber platforms that have questionable returns on investment. Despite the unknown value of social media, conventional wisdom seems to suggest that companies require some form of social media presence. Frankly, a lack thereof sends red flags to consumers that a brand is unsophisticated or out of date.

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New Global Rules for Digital Interactive Marketing

Posted by Debbie Rosenbaum on January 06, 2012

Reposted from DLA Piper's Law à la Mode Edition 4 - Winter 2011

By:  Michael K. Barron, Sarah Phillips and Nadea Taylor (Boston and London)
“AdWords,” the paid, subscription-based Google referencing service which allows users to advertise their companies alongside Google search results, has recently been the subject of much legal scrutiny.  In late September, the European Court of Justice (ECJ) gave a preliminary ruling on questions referred to it by the English High Court in the case between Interflora and Marks & Spencer (“M&S”), regarding the purchase by M&S of the Google AdWord “Interflora” and other similar AdWords. 
In answering the questions referred to it, the ECJ repeated much of the recent jurisprudence in this area, in particular from the Google France case.  Previous cases established that purchasing a third parties’ trademark as an AdWord would only amount to trademark infringement if such use would have an adverse effect on one of the functions of the trademark.  
The ECJ gave the following guidance on how national courts should assess whether the use by a third party of a sign identical with a trademark in relation to identical goods or services has an adverse affect on one of the functions of the trademark:

By: Caroline Olstedt Carlström (Stockholm)

The new digital landscape and its embrace by the corporate world create new challenges for all marketing professionals at a pace that has never before been encountered.  In fact, organisational procedures and legal standards are struggling to keep up.  Few jurisdictions have marketing regulations in place that are up-to-date with the latest digital possibilities.  Social media can be an effective tool for marketing and brand awareness, but it also poses great challenges for marketing professionals navigating new issues. 

On September 15th, the International Chamber of Commerce (ICC) presented its new 2011 Consolidated ICC Code of Advertising and Marketing Communication Practice (the “Code”). The Code raises the standards for consumer protection globally and also includes new online rules.  It is recognised as the gold standard for self-regulation and now offers best practice guidance across all sectors, technologies and platforms and guides marketing professionals as they deal with many of the most challenging topics, such as Online Behavioural Advertising (OBA), marketing in digital interactive media, privacy protection, environmental claims and marketing to children.  

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No Proof Reebok Shoes Shaping You Up, Says FTC

Posted by Debbie Rosenbaum on January 04, 2012

Reposted from DLA Piper's Law à la Mode Edition 4 - Winter 2011

By:  Michael K. Barron, Sarah Phillips and Nadea Taylor (Boston and London)
“AdWords,” the paid, subscription-based Google referencing service which allows users to advertise their companies alongside Google search results, has recently been the subject of much legal scrutiny.  In late September, the European Court of Justice (ECJ) gave a preliminary ruling on questions referred to it by the English High Court in the case between Interflora and Marks & Spencer (“M&S”), regarding the purchase by M&S of the Google AdWord “Interflora” and other similar AdWords. 
In answering the questions referred to it, the ECJ repeated much of the recent jurisprudence in this area, in particular from the Google France case.  Previous cases established that purchasing a third parties’ trademark as an AdWord would only amount to trademark infringement if such use would have an adverse effect on one of the functions of the trademark.  
The ECJ gave the following guidance on how national courts should assess whether the use by a third party of a sign identical with a trademark in relation to identical goods or services has an adverse affect on one of the functions of the trademark:

By: Michelle Schaefer and Alexandra Marzelli (Washington, DC)

In September,  the U.S. Federal Trade Commission (“FTC”) — the consumer protection agency tasked with regulating U.S. advertising practices for consumer goods — warned companies selling apparel and footwear in the U.S. that all health and fitness claims must be substantiated by competent and reliable scientific evidence.  This warning came from the FTC’s lawsuit against Reebok International Lmtd. (“Reebok”), for alleged deceptive practices related to certain footwear including running sneakers, walking sneakers and flip-flops.  Reebok was charged with making “unsubstantiated claims” that the footwear provides extra tone and strength to key muscle groups (including the buttocks, hamstrings and calves) and strengthens various muscle groups by a certain percentage.  Under the settlement, Reebok agreed to pay $25 million in refunds to consumers.  Reebok has stated that the settlement does not indicate agreement with the FTC’s allegations and it will continue to sell the products at issue, but will market them differently.   

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Idiosyncrasies of the Spanish Fashion Market

Posted by Debbie Rosenbaum on December 27, 2011

Reposted from DLA Piper's Law à la Mode Edition 4 - Winter 2011

By:  Michael K. Barron, Sarah Phillips and Nadea Taylor (Boston and London)
“AdWords,” the paid, subscription-based Google referencing service which allows users to advertise their companies alongside Google search results, has recently been the subject of much legal scrutiny.  In late September, the European Court of Justice (ECJ) gave a preliminary ruling on questions referred to it by the English High Court in the case between Interflora and Marks & Spencer (“M&S”), regarding the purchase by M&S of the Google AdWord “Interflora” and other similar AdWords. 
In answering the questions referred to it, the ECJ repeated much of the recent jurisprudence in this area, in particular from the Google France case.  Previous cases established that purchasing a third parties’ trademark as an AdWord would only amount to trademark infringement if such use would have an adverse effect on one of the functions of the trademark.  
The ECJ gave the following guidance on how national courts should assess whether the use by a third party of a sign identical with a trademark in relation to identical goods or services has an adverse affect on one of the functions of the trademark:

By: Bartolome Martin (Madrid)

Some decades ago, the Spanish Tourism Authority’s advertisements across Europe proudly touted that “Spain is different.”  In reality, this may indeed be true.  Spain is an idiosyncratic country where universality and localism are good friends, crisis and luxury seem to have a passionate relationship, and customs from the past walk hand in hand with the latest trends.  This self-contradicting spirit, cultural individuality and inherent diversity are without a doubt reflected in the Spanish fashion market. 

Some decades ago, the Spanish Tourism Authority’s advertisements across Europe proudly touted that “Spain is different.”  In reality, this may indeed be true.  Spain is an idiosyncratic country where universality and localism are good friends, crisis and luxury seem to have a passionate relationship, and customs from the past walk hand in hand with the latest trends.  This self-contradicting spirit, cultural individuality and inherent diversity are without a doubt reflected in the Spanish fashion market. 

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The Debate for AdWords Ownership in Cyberspace Continues

Posted by Debbie Rosenbaum on December 21, 2011

Reposted from DLA Piper's Law à la Mode Edition 4 - Winter 2011

By:  Michael K. Barron, Sarah Phillips and Nadea Taylor (Boston and London)
“AdWords,” the paid, subscription-based Google referencing service which allows users to advertise their companies alongside Google search results, has recently been the subject of much legal scrutiny.  In late September, the European Court of Justice (ECJ) gave a preliminary ruling on questions referred to it by the English High Court in the case between Interflora and Marks & Spencer (“M&S”), regarding the purchase by M&S of the Google AdWord “Interflora” and other similar AdWords. 
In answering the questions referred to it, the ECJ repeated much of the recent jurisprudence in this area, in particular from the Google France case.  Previous cases established that purchasing a third parties’ trademark as an AdWord would only amount to trademark infringement if such use would have an adverse effect on one of the functions of the trademark.  
The ECJ gave the following guidance on how national courts should assess whether the use by a third party of a sign identical with a trademark in relation to identical goods or services has an adverse affect on one of the functions of the trademark:

By: Michael K. Barron, Sarah Phillips and Nadea Taylor (Boston and London)

“AdWords,” the paid, subscription-based Google referencing service which allows users to advertise their companies alongside Google search results, has recently been the subject of much legal scrutiny.  In late September, the European Court of Justice (ECJ) gave a preliminary ruling on questions referred to it by the English High Court in the case between Interflora and Marks & Spencer (“M&S”), regarding the purchase by M&S of the Google AdWord “Interflora” and other similar AdWords. 

In answering the questions referred to it, the ECJ repeated much of the recent jurisprudence in this area, in particular from the Google France case.  Previous cases established that purchasing a third parties’ trademark as an AdWord would only amount to trademark infringement if such use would have an adverse effect on one of the functions of the trademark.  

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Law à La Mode - Winter 2011 Edition

Posted by Debbie Rosenbaum on December 16, 2011

LALM cover winter.jpgDLA Piper's Fashion Retail Design Group recently published Law a la Mode - Edition 4 Winter 2011, a legal fashion-style magazine that is distributed to clients and friends of the firm worldwide.  Law a la Mode has a revolving editorialship and Edition 4 is the first to be edited by the U.S. offices.

Members of the U.S. editorial board include Ann K. Ford, Gina Durham, Tamar Duvdevani, Kiran N. Gore, Melissa Reinckens, Debbie Rosenbaum, Michelle Schaefer, Radiance A. Walters, and Job Seese (New York, Washington DC, and Chicago).  

The magazine is available here.

We welcome your thoughts and comments on our latest edition.  

 

 

Culture Minister calls for balance between advertising innovation and privacy

Posted by Patrick Mitchell on December 11, 2011

Reposted from DLA Piper's Media & Sport Group Bulletin

Editorial Team: Nick Fitzpatrick, Duncan Calow and Patrick Mitchell

Ofcom has cleared Al Jazeera English channel ("Al Jazeera") for its broadcast of "The Palestine Papers" after a complaint of unfair treatment by the Chief Negotiator of the Palestine Liberation Organisation ("PLO").
"The Palestine Papers", a four-part documentary series broadcast on Al Jazeera, examined "leaked" diplomatic documents relating to the Middle East peace process. The series criticised the role played by Dr Saeb Erakat, the Chief Negotiator of the PLO, a number of times. This prompted Dr Erakat to complain of unfair treatment and unwarranted infringement of privacy on behalf of both himself and the PLO.
The complaint, amongst other things, argued that important contextual information was deliberately omitted so that viewers could not properly understand the subjects discussed during the negotiation scenes and that the programme broadcast details of confidential documents that were stolen from Dr Erakat's office in breach of confidentiality and privacy.
In response to these particular complaints, Al Jazeera stated that the programme makers took reasonable care and carried out considerable research to ensure that all material facts were presented fairly. Al Jazeera also argued that, in any case, any alleged breach was warranted as the programme dealt with public affairs of great political and international importance and there could be no doubt about the importance of investigating and criticising the decisions made by Dr Erakat and other senior negotiators. Therefore, according to Al Jazeera, no consent was required from anyone within the PLO prior to broadcast.
Ofcom found that material facts in relation to the negotiations were not presented or omitted in a way that led to unfair treatment of Dr Erakat and the infringement of privacy in relation to obtaining and using the confidential document was warranted due to the significant public interest in the issues covered by the documentary series.

Ed Vaizey has addressed the Internet Advertising Bureau ("IAB") on issues regarding advertising and privacy, including the implementation of the e-Privacy directive, "Do Not Track" (a technology and policy proposal that enables users to opt out of tracking by websites they do not visit) and the upcoming revision of the Data Protection Directive.

During his speech to the IAB on 3 November this year, Ed Vaizey, Minister for Culture, Communications and the Creative Industries, outlined the importance of the relationship between online advertising and concerns about privacy, stressing the need to achieve a careful balance between protecting users' privacy online and encouraging continued innovation in advertising.

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ONLINE MARKET PLACES RESPONSIBLE FOR TRADEMARK INFRINGEMENTS

Posted by Debbie Rosenbaum on December 08, 2011

Reprinted from La A La Mode, DLA Piper's Fashion, Retail and Design E-zine

by Louis Puts (Brussels)

Online marketplaces such as auction sites are often used as platforms for selling unlawful fashion products. On 12 July, 2011, the CJEU rendered an important decision concerning the unlawful offers of cosmetic products with L'Oréal's trademarks on eBay. For the first time, the decision has clarified the circumstances under which online marketplace operators may be held responsible for unlawful trade-marked products offered for sale on their platform site, under trade-mark law, the E-Commerce and the IP Enforcement Directives.

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NEW CONSUMER RIGHTS DIRECTIVE: 10 COMMANDMENTS FOR ONLINE RETAILERS

Posted by Debbie Rosenbaum on December 05, 2011

Reprinted from La A La Mode, DLA Piper's Fashion, Retail and Design E-zine

by Jean-Louis Kerrels and Julie De Bruyn (Brussels)

On June 23, the European Parliament adopted the Consumer Rights Directive.* Among the changes is a 14 day EU-wide right for consumers to change their mind about their online purchases, as well as new information requirements.

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ON TREND: EU POLICY MAKING IN BRUSSELS

Posted by Debbie Rosenbaum on November 30, 2011

Reprinted from La A La Mode, DLA Piper's Fashion, Retail and Design E-zine

by Emma Greenow (Brussels)
http://www.shutterstock.com/pic.mhtml?id=5228836
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With what can seem to be an overwhelming increase in the quantity and complexity of EU regulation facing the fashion industry, understanding and taking action in this area can seem as if you are navigating a tangled web of issues and stakeholders.
The recent EU regulatory agenda has included policy reviews in relation to the intellectual property framework, the Digital Agenda, Online Behavioural Advertising, Consumer Rights and redress amongst others. Each of these developments has a direct impact on business activities in the fashion industry in Europe and, for this reason, interaction from rightsholders into the creation of the regulatory framework is essential. 
In recognition of this fact, fashion houses and brands are investing heavily in strategic discussions at EU level in order to directly provide input into many of the forthcoming changes. Through enhanced regularised contact with legislators and the provision of timely and helpful advice, all stakeholders are trying to move towards more workable and less cumbersome regulatory obligations for businesses.
An effective example of the need and value of increased dialogue was shown in the drafting of the recent recommendations for Online Behavioural Advertising, where industry, consumer groups and legislators worked together through dialogue to develop a series of best practice principles which all parties supported.  As a result of this process, the contributors may well have diverted a further regulatory burden for all stakeholders.
Following the changes brought about by the Lisbon Treaty, it is vital for all fashion industry participants to engage and input into all 3 key EU institutions, the European Commission, the European Parliament and the Council of the European Union. 
Legislative advocacy by rightsholders can take many forms - from the traditional methods such as meet and greet sessions with key stakeholders, press releases and local media, to the more sophisticated and targeted advocacy including social media campaigns, video messaging and awareness raising. All methods have definite advantages however it is key to know when to link each method into your activities. 
The face of the regulatory framework for the fashion industry is changing rapidly and this trend is likely to continue into 2012 - what is of key importance is your inclusion and input into these forthcoming discussions.

by Emma Greenow (Brussels)

With what can seem to be an overwhelming increase in the quantity and complexity of EU regulation facing the fashion industry, understanding and taking action in this area can seem as if you are navigating a tangled web of issues and stakeholders.

The recent EU regulatory agenda has included policy reviews in relation to the intellectual property framework, the Digital Agenda, Online Behavioural Advertising, Consumer Rights and redress amongst others. Each of these developments has a direct impact on business activities in the fashion industry in Europe and, for this reason, interaction from rightsholders into the creation of the regulatory framework is essential.

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FTC Settlement Provides Guidance on Substantiation for Product Health and Fitness Claims

Posted by Scott Pink on November 15, 2011

The Federal Trade Commission (FTC) recently entered a settlement order with Reebok International Ltd. to resolve charges that the company deceptively advertised that its "toning shoes" would provide extra tone and strength to leg and buttock muscles. The settlement arises out of an action the FTC brought in the United States District Court for the Northern District of Ohio alleging the Reebok engaged in deceptive acts or practices and false advertisements in violation of Sections 5(a) and 12 of the FTC Act. Among other things, the FTC took issue with a TV ad in which a fit woman explains to the audience the benefits of the toning shoe, pointing to a chart that showing that the shoes are proven to strengthen hamstrings and calves up to 11 percent and tone the buttocks up to "28 more than regular sneakers, just by walking." The FTC also contended that the use of the word "tone" in the product name was deceptive. The FTC's contention was that these claims were deceptive because they not supported by adequate substantiation.

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FTC Settlement Requires Detailed Disclosures Regarding Use of Flash Cookies

Posted by Scott Pink on November 13, 2011

Cookies have long been a key means for online companies to track a consumer's web browsing activities. Most browsers allow the consumer to block conventional cookies from accessing their computer. To get around this obstacle, marketers have increasingly employed "flash cookies" , which use a different approach for storing a consumers online behavior and are not as easily blocked as conventional cookies. The Federal Trade Commission (FTC) has voiced increasing concern about the use of tools by companies to engage in online behavioral advertising without the consumer's knowledge or consent. This has led to the issuance of self-regulatory guidelines as well as increasing scrutiny of the use of online advertising tools by advertisers.

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Authorities fight ambush marketing at the Rugby World Cup

Posted by Nick Fitzpatrick on October 21, 2011

Reposted from DLA Piper's Media & Sport Group Bulletin

Editorial Team: Nick Fitzpatrick, Duncan Calow and Patrick Mitchell

Authorities in New Zealand are using the Major Events Management Act 2007(MEMA) to combat ambush marketing at this year's Rugby World Cup (RWC).

The RWC has been declared a "Major Event" for the purposes of MEMA (under the Major Events Management Act (Rugby World Cup 2011) Order 2007) - as such, parties that are not official commercial partners of the RWC are prohibited from marketing their goods and services in any way that suggests they are official sponsors or otherwise associated with the event. The MEMA attempts to prevent ambush marketing by prohibiting the use of key event emblems and words, including phrases such as "Rugby World Cup" and "Webb Ellis Cup", as well as the use of the RWC logo or image of the Web Ellis Cup, in any advertising or promotional activity. Furthermore, the MEMA seeks to provide areas and routes around the stadia where unauthorised advertising and street trading are prohibited.

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ASA finds Trainline.com Ltd guilty of using misleading and exaggerated advertising techniques

Posted by Duncan Calow on October 20, 2011

Reposted from DLA Piper's Media & Sport Group Bulletin

Editorial Team: Nick Fitzpatrick, Duncan Calow and Patrick Mitchell

The Advertising Standard Agency ("ASA") order that an advertisement for thetrainline.com be removed due to its misleading content.
The television advertisement for thetrainline.com, which was broadcast on 9 May 2011, featured people carrying placards that stated "Save 43% on average" and "Save up to 6pm the day before travel". On-screen text stated "Advance fares and selected routes only. Subject to availability".

The Advertising Standard Agency ("ASA") order that an advertisement for thetrainline.com be removed due to its misleading content.

The television advertisement for thetrainline.com, which was broadcast on 9 May 2011, featured people carrying placards that stated "Save 43% on average" and "Save up to 6pm the day before travel". On-screen text stated "Advance fares and selected routes only. Subject to availability".

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New benchmark set for ad compliance rates on websites

Posted by Patrick Mitchell on October 06, 2011

Reposted from DLA Piper's Media & Sport Group Bulletin

Editorial Team: Nick Fitzpatrick, Duncan Calow and Patrick Mitchell

The Advertising Standards Authority's Digital Media Survey 2011 has revealed that the advertising on 95% of websites monitored adhered to the Advertising Code.

As part of the Advertising Standards Authority ("ASA")'s survey, 120 websites were monitored by the ASA Compliance team for a period to 1 March. In addition, the ASA Compliance team contacted the offending website owners and sought an assurance that they would amend their advertising to ensure compliance on a go-forward basis.

bulletin from the Media & Sport Group at DLA

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ASA finds L'Oreal guilty of using misleading and exaggerated advertisement techniques

Posted by Rebecca Kay on August 15, 2011

Reposted from DLA Piper's Media & Sport Group bulletin

Editorial Team: Nick Fitzpatrick, Duncan Calow and Patrick Mitchell

Two advertisements for L'Oreal (UK) Ltd's beauty brands, Lancôme and Maybelline, were ordered to be removed from advertising circulation due to their misleading content (decisions here and here).

The two advertisements, for Lancôme's "Teint Miracle" foundation featuring Julia Roberts and Maybelline's "The Eraser" foundation featuring Christy Turlington, used post-production digital manipulation on the faces of both women.  This was found to heighten the effect both products could actually achieve.


For both advertisements, L'Oreal (UK) Ltd supplied unedited pictures of the women to show that the effect of the digital manipulation was not to mislead but to fulfil the expectations held about the beauty of Roberts and Turlington.  They also provided evidence that supported overall claims for the effects both products would have on the skin.


However, the challenge, brought by the MP Jo Swinson, was upheld. The ASA could "not conclude that the ad image accurately illustrated what effect the product could achieve" and so were misleading and in breach of CAP code 3.1 (Misleading advertising) and 3.11 (Exaggeration). The adverts must not appear again in their current form.

Comparative Advertising Issues in Asia

Posted by Scott Buchanan on May 15, 2011

Posted by Scott Buchanan, Partner DLA Piper Australia

This morning, I participated in a round table discussion on comparative advertising issues in Asia. I was the only representative from Australia and had a good audience of representatives from India, HK, Japan and also from the US.  I wanted to share some of the most interesting points from the discussion, and invite you to continue the discussion in the comments below.

  • In India, disparaging advertising is reported to be an increasing problem.  Companies should be aware their brand could be subject to ridicule in advertising in India.
  • Disparaging advertising not specifically legislated against in Australia.  Instead, this sort of advertising is largely moderated by commercial and cultural influences which results in consumers not responding positively to a company's disparaging attack on a competitor particularly where the attack is baseless, scandalous or amounts to innuendo. To the extent that an advertisement is untruthful then possible grounds may exist under our ACL (misleading or deceptive conduct) or passing off. HK, Japan and US reported similar situations in their countries.  in the cases of Japan and US, additional potential remedies to comparative advertising issues exist under Unfair Competition laws. 
  • Representatives from most jurisdictions agreed that disparaging advertising is unlikely to amount to trade mark infringement because no 'use as a trade mark'. 
  • Enforcement of trade marks in China: HK representative advised that enforcement in China is improving for overseas trade mark owners but the emphasis is on overseas trade mark owners to register in China. China's trade mark system operates on a first to register basis making it important for companies to protect their mark in China. 
  • Each jurisdiction represented in this discussion reported that matrix of laws dealing with passing off, copyright, trade dress (US), statutory misrepresentation provide a means for dealing with a competitor's conduct which 'sails too close to the wind'.

Comparative advertising is one of those issues that underscores the importance of having your company's marketing team work closely with the legal team.  

What do you think?  Is comparative advertising effective?  Which country has it "right"?

IP ROUNDUP: APR. 4

Posted by Debbie Rosenbaum on April 04, 2011

Some of the latest copyright and trademark happenings from around the Internet:

IP ROUNDUP: MAR. 21

Posted by Debbie Rosenbaum on March 21, 2011

Annnndddd we're back from a small hiatus.  Since the last IP Roundup, there have been a ton of great stories and analyses on Trademark and Copyright Law around the Internet.  

Microsoft adopts Google's trademark policy

Posted by Tom Zutic on February 18, 2011

In a move to match Google's trademark policy in selling search advertising, Microsoft announced this week that it will follow suit and allow customers to bid on trademarked keywords which trigger competitive advertising.  The line in the sand will be drawn at trademarks still not being allowed in the text of any advertisement.  

In a move to match Google's trademark policy in selling search advertising, Microsoft announced this week [link to announcement] that it will follow suit and allow customers to "bid" on trademarked keywords to trigger competitive advertising.  Trademarks will still not be allowed in the text of any advertisement.  The policy [link to policy], which goes into effect March 3, continues to raise interesting trademark "use in commerce" questions for clients around the world.  Google has been involved in litigation on the issue, but court decisions in combination with industry standard seem to indicate that the practice is becoming the internet standard moving forward.In a move to match Google's trademark policy in selling search advertising, Microsoft announced this week that it will follow suit and allow customers to "bid" on trademarked keywords to trigger competitive advertising.  Trademarks will still not be allowed in the text of any advertisement.  

The policy, which goes into effect March 3, continues to raise interesting trademark "use in commerce" questions for clients around the world.  Google has been involved in litigation on the issue, but court decisions in combination with industry standard seem to indicate that the practice is becoming the internet standard moving forward.

Eric Goldman, our friend at the Technology and Marketing Law Blog, was among the first to report the change. He has also had some of the best coverage of the Trademark Law and Google AdWords cases over the years.