By Tamar Duvdevani

Couch potatoes everywhere have had a chuckle over DirecTV’s campaign featuring Rob Lowe’s “cool” and creepy/awkward/dorky personas, wherein “cool Rob” is equated to DirecTV, and the less fortunate Rob is equated to a competitor.  One example of the campaign is a commercial wherein beloved heartthrob, well dressed, successful Rob Lowe states that he has DirecTV, while mullet-donning, varsity-jacket-clad, “peaked in high school” Rob Lowe states that he has cable.  The commercial, through these personas, make statements promoting DirecTV over cable, with the conclusion from normal Rob: “Don’t’ be like this me, get rid of cable and upgrade to DirecTV.”

Unfortunately for DirecTV, cable companies thought it no laughing matter that some of the commercials made claims that DirecTV users experience “99% signal reliability” and “The industry’s best picture quality and sound,” and that DirecTV is ranked “#1 in customer satisfaction over all cable TV providers,”  “ranked higher than cable for over 10 years,”  and “the undisputed leader in sports which means you can watch all the games you want to.”  Even the “don’t be like this me” tagline raised the ire of cable company Comcast, who, according to the National Advertising Division (NAD), part of the Council of Better Business Bureaus, challenged these claims. 


Continue Reading Laughter: It’s The Best Medicine, But Not The Cure For False Advertising

Repost from LAW À LA MODE, Issue 13 – April 2014

By Farid Bouguettaya (Paris) 

The 20th anniversary of the French Language Act (Loi Toubon) of 4 August 1994 is a good occasion to examine the applicable rules when advertising in France. Such requirements are of particular interest for the fashion, retail and design sectors, which are in essence international and predominantly use English as the language of communication.


Continue Reading ADVERTISING IN FRANCE PARLEZ-VOUS FRANÇAIS?

By Scott Pink, David Kramer and Carissa Bouwer

Touting a product as environmentally friendly has become increasingly important to companies seeking to differentiate their products and appeal to consumers’ desires to protect the environment. The Federal Trade Commission (FTC) has long been concerned that many companies engage in “greenwashing” in which they overstate or mislead the public about the environmental benefits of their products. In response to these concerns, the FTC issued its first set of “Green Guides” in 1992 to provide guidance to marketers in making true and non-deceptive claims. These Green Guides were updated twice in the 1990s, but have remained unchanged for over a decade.


Continue Reading FTC Issues Revised Green Guides To Prevent Misleading Environmental Claims

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.  


Continue Reading New Global Rules for Digital Interactive Marketing

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.   


Continue Reading No Proof Reebok Shoes Shaping You Up, Says FTC

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. 


Continue Reading Idiosyncrasies of the Spanish Fashion Market

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: Tamar Duvdevani (New York)

Aspirin. Thermos. Escalator. Cellophane.  What do all of these items have in common?  If your answer is “objects that MacGyver needs to get out of a sticky situation,” you may be correct, but that is not what we were looking for.

Each of these commonplace, generic terms for the objects that they define were once valuable intellectual property before they lost protection through “genericide,” the  process by which trademark rights are diminished or lost as a result of overuse in the marketplace.  Genericide can happen in a variety of ways.  A trademark owner’s failure to police its mark, for example, can result in widespread use of the term by other sellers, thereby reducing the trademark’s ability to identify source.  In other instances, a term intended by the seller to be a trademark for its novel product is understood by the public to be a generic name because there is no other word in the vernacular to describe the product.  Both of these fates can be avoided by thoughtful branding strategies.


Continue Reading Don’t Let Genericide Happen to You