By Heather Dunn

Earlier this year the Federal Trade Commission (FTC) issued an in-depth Q&A on its Endorsement Guides, making very clear that any “material connections” between endorsers and a brand must be disclosed alongside an endorsement.  Endorser disclosures are the advertiser’s responsibility, and the FTC will generally pursue the advertiser and its advertising agencies for violations.  This means companies must provide appropriate training to their endorsers, and must monitor their activities.  As a recent FTC letter indicated, doing so can provide great benefit, even when things go awry.


Continue Reading THE IMPORTANCE OF KNOWING AND CONTROLLING YOUR ENDORSEMENT NETWORK

By James Stewart and David Kramer

Following the publication of the article titled .SUCKS: A Questionable Future?, posted on April 13, 2015, the author received an unsolicited email from John Berard, CEO of Vox Populi Registry, Ltd. (“Vox”), the registry responsible for the controversial .SUCKS gTLD, responding to the article.  In an email, Berard shares his perspective on the launch of the .SUCKS registry and the controversy that has ensued.  In particular, Berard notes:

The mission of the Vox Populi Registry is not to just sell names, but to help create a new destination, one where criticism can be heard and engaged.  And, if they arise, errors corrected.  Right now, companies don’t always get the chance to correct the record.  Heck, a lot of what shows up in search results can’t even be run to ground.

From the beginning I have said there is no need (it is certainly not mandatory) for a company to register its dotSucks domainJust be willing to engage.  In 2015 with 20 years’ experience of the Internet as a business platform, I would not have thought this to be so radical an idea.” (emphasis added)


Continue Reading UPDATE: .SUCKS CEO SPEAKS

By James Stewart 

In response to a veritable deluge of concerns from brand owners over the .SUCKS domain name registry’s pricing structure, the Internet Corporation for Assigned Names and Numbers (“ICANN”) sent a letter to the U.S. Federal Trade Commission (“FTC”) and Canada’s Office of Consumer Affairs (“OCA”) on Thursday, April 9, 2015.  ICANN has requested that the FTC and OCA assess the legality of the .SUCKS registry operator, Vox Populi Registry, Ltd.’s (“Vox”) purportedly ”predatory” premium pricing structure for brands.  


Continue Reading A Questionable Future for .SUCKS Domain Names?

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.


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

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: 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

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.


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

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.


Continue Reading FTC Settlement Requires Detailed Disclosures Regarding Use of Flash Cookies