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FeedFront Magazine: Implications of FTC Endorsement Guidelines - Published Article -  01/01/2010

By: Gary Kibel

On October 5th, the Federal TradeCommission (“FTC”) announced revisions to its Guides Concerning the Use of Endorsements and Testimonials (“Guides”). As the most significant changes in almost 30 years, the regulators had a lot of catching up to do.

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Advertising, Marketing & Promotions Alert >> Compliance Date For Massachusetts’ Data Security Regulations May Not Extend Past March 1, 2010 - Alert -  11/19/2009

Now is the time for businesses to ensure that they will be in compliance with Massachusetts data security regulations come March 2010.

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Brandweek // NAD: The Plug Stops Here - Press Mention - 11/01/2009

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Advertising, Marketing & Promotions Alert >> FTC Publishes Final Guides Governing Endorsements And Testimonials - Alert -  10/06/2009

Advertisers should be proactive in their response to the revised Guides by establishing policies and procedures that respond to the FTC’s changes, particularly with respect to new media, such as blogs and other consumer-generated media.

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Advertising, Marketing & Promotions Alert >> New Maine Marketing Law Is Likely Unconstitutional - Alert -  09/22/2009

On September 9, 2009, The United States District Court of Maine ruled that the Maine marketing law, The Act to Prevent Predatory Marketing Practices Against Minors, is likely unconstitutional.

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Advertising, Marketing & Promotions Alert >> New Maine Law Restricts Marketing to Minors - Alert -  08/20/2009

Maine recently enacted a law that restricts the collection of healthrelated and personal information from minors and effectively eliminates the ability of marketers to use this information. The Act to Prevent Predatory Marketing Practices Against Minors (the Act) takes effect on September 12, 2009. The ultimate effect of this new law will require marketers to significantly alter their practices in the state of Maine.

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Advertising, Marketing & Promotions Alert >> Principles for Online Behavioral Advertising Released by Top Trade Groups - Alert -  08/10/2009

In July, four key advertising trade associations announced new self-regulatory guidelines which are intended to address consumer privacy concerns and increase transparency in connection with online behavioral advertising.

 

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New York Law Journal: Non-Traditional Advertising During Economic Turbulence - Published Article -  06/18/2009

By: Joy Wildes and Brooke Erdos Singer

In the current economic crisis, many companies have lower budgets with which to advertise their products or services. Although the full impact of the recession on advertising and marketing spending has yet to be seen, insiders and industry analysts are predicting further decreases in advertising spending in newspapers, magazines, TV and radio with a concurrent rise in spending and usage in non-traditional media.

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DTC Perspectives: The FDA and Search Engines - Published Article -  06/01/2009

By: Stuart Lee Friedel and Michael Peroff, Co-Founder/Managing Partner, Strategic Domain, Inc.

After the FDA’s recent batch of warning letters addressing sponsored links, the reaction by the majority of pharma companies was to withdraw these text ads. While hoping for further direction from the agency - which may or may not be forthcoming - marketers are now considering options for using brand references in text ads.

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Advertising, Marketing and Promotions Alert >> The FTC Red Flags Rule On Identity Theft: It May Apply To Your Business - Alert -  05/14/2009

Identity theft is an issue that concerns every consumer. However, most businesses consider identity theft an issue for others to worry about in a commercial context, such as credit reporting agencies, banks, credit card companies and other traditional financial institutions.

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Brandweek//New FTC Asserts Itself - Press Mention - 04/27/2009

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Advertising, Marketing & Promotions Alert >> FTC Updates Online Behavioral Advertising Principles - Alert -  03/04/2009

Last month, the Federal Trade Commission issued a long-awaited update (titled “FTC Staff Report: Self-Regulatory Principles for Online Behavioral Advertising”) to its online behavioral advertising principles originally issued in December 2007.

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Advertising, Marketing & Promotions Alert >> PhRMA Amends Voluntary Guidelines on DTC Advertising - Alert -  02/10/2009

Last December, the Pharmaceutical Research and Manufacturers of America (PhRMA) announced that it had revised, and thereby strengthened, its voluntary guidelines for members relating to direct to consumer (DTC) advertising, PhRMA Guiding Principles, Direct to Consumer Advertisements About Prescription Medicines (the Guiding Principles).

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Journal of Sponsorship: Branded Entertainment: The Old is New Again and More Complicated Than Ever - Published Article -  02/01/2009

By: James L. Johnston

Some in the media would have us believe that product placement is some new and perhaps dangerous development in US television. Yet the practice of brands securing product placements, sponsoring radio and television programming, and integrating their brands and products into programming, is nearly as old as electronic media itself. From The Jell-O Program starring Jack Benny to The Johnson Wax Program with Fibber McGee and Molly, the very start of radio was dominated by sponsored programming and in-programme product mentions.

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The Metropolitan Corporate Counsel: Widgets in Online Marketing Campaigns - A Balancing Act - Published Article -  01/01/2009

By: James L. Johnston, Oriyan Gitig and Alison Winter

What Is a Widget? A widget or web widget is an HTML code web application typically created by a third party which can be downloaded to a web page (including, for example, a blog or social networking profile) that delivers tailored information, graphics, games, videos, and other non-static content. Widgets are generally available at no cost, enabling users to easily access and distribute them, and are often customizable by the user.

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PromoMagzine.com // Fed Up - Press Mention - 01/01/2009

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PROMO: UGC Refresher Course - Published Article -  12/01/2008

By: Joseph J. Lewczak

While some sources are sounding the death knell for user-generated content (or UGC), by most accounts it is still going strong, with both users and creaters of UGC representing an increasing percentage of the overall Internet population in the next five years. Since it appears that UGC is not going anywhere anytime soon, it's a good time for a brief refresher course on the major legal issues you are likely to encounter in structuring and running a UGC promotion. Follow these simple rules and you will be able to avoid the pitfalls that others have already encountered.

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The Metropolitan Corporate Counsel: Advertising, Marketing And Promotions Law Year In Review - Published Article -  12/01/2008

By: Joseph J. Lewczak, Allison Fitzpatrick and Matthew Smith

While Wall Street, the Olympics, and a presidential election dominated headlines, green marketers, Kevin Trudeau (again) and a Naked Cowboy also left their indelible marks on 2008.

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InsideCounsel // Flagrant Fraud - Press Mention - 11/01/2008

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The Metropolitan Corporate Counsel: Behavioral Advertising - An Advertisers Dream Or A Privacy Nightmare? - Published Article -  09/01/2008

By: Gary A. Kibel

Behavioral advertising is the practice of capturing vast amounts of non-personal consumer data, developing a profile of the consumer and then delivering a targeted message to that particular consumer.

 

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Advertising Compliance Service: Advertisers: Be Aware of the Legal Pitfalls of Going Green - Published Article -  08/04/2008

By: Ronald R. Urbach and Matthew Smith

Long considered by business as only the color of money, green is fast becoming the color of marketing in the United States as well. Everywhere you look, companies are rushing to position their brands as being somehow “green.” The reason for this shift comes as little surprise to anyone who follows the marketplace. The National Marketing Institute estimates that consumers with environmental concerns represent over $230 billion in spending power. 1 And studies show that more than 80% of Americans now consider a company’s environmental record to be an important factor in deciding whether to buy its products. 2 As a result, companies across the product spectrum are now using their advertising to tout their environmental responsibility and, if possible, their products’ environmental benefits.

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PRWeek: User-generated Content Can Be Risky - Published Article -  07/14/2008

By: Michael C. Lasky and Joseph J. Lewczak

Is user-generated content (UGC) the solution that marketers have been waiting for? YouTube, the "digital revolution," and Web 2.0 have certainly opened the floodgates for consumers to create what they want. Seizing on the popularity, clients are constantly asking PR firms and other mar-comm agencies to incorporate creative consumer content into marketing and publicity campaigns.

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Advertising, Marketing & Promotions Alert >> Arbitrator Levels Playing Field for SAG P&H Allocation Disputes - Alert -  07/07/2008

On June 11, 2008, an arbitrator issued his decision in an arbitration filed by the ANA-AAAA Joint Policy Committee on Broadcast Talent Relations (JPC), a committee made up of advertising agencies and advertisers, against SAG, determining that the SAG Pension & Health Funds Trustees (the Trustees) cannot unilaterally set pension and health allocations.

Howard Weingrad

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The Metropolitan Corporate Counsel: Is The Design Piracy Protection Act A Step Forward For Copyright Law Or Is It Destined To Fall Apart At The Seams? - Published Article -  07/01/2008

By: Ronald R. Urbach and Jennifer Soussa

Fashion has permeated nearly every medium of American culture, including television, with programs such as “Project Runway” and “What Not to Wear;” movies, such as “The Devil Wears Prada;” magazines, including “Vogue,” “Glamour” and “Elle;” art, such as the Metropolitan Museum of Art’s Costume Institute, which houses a collection of more than 30,000 costumes, fashions and accessories, and music, with musicians such as Madonna, Sean “P. Diddy” Combs and Gwen Stefani wielding influence beyond the stage with their styles and fashion lines.

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Legal 500 Ranks Davis & Gilbert “Top Tier” for Media, Technology and Telecommunications: Marketing and Advertising - Press Release - 06/10/2008

The Legal 500, the world’s largest legal referral guide, has ranked Davis & Gilbert in the top tier in the media, technology and telecommunications category for its marketing and advertising expertise in its 2008 U.S. reference guide.

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Advertising, Marketing & Promotions Alert >> FTC Approves New Rule Provisions Under the Can-Spam Act - Alert -  06/01/2008

On May 12, 2008, the Federal Trade Commission (FTC) announced new rule provisions under the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM Act or Act).  These new rule provisions could have a significant impact on your email practices as they modify and clarify certain key definitions and requirements of the Act.  The new rule provisions are a follow-up to a Notice of Proposed Rulemaking (NPRM) on these and other CAN-SPAM topics published by the FTC in May 2005.

Gary Kibel and Allison Fitzpatrick

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The Metropolitan Corporate Counsel: Professional Lawyers. Do Not Attempt. - Published Article -  04/01/2008

By: Joseph J. Lewczak and Christopher Poindexter

We are all familiar with the often used disclaimers “Professional driver. Closed course. Do not attempt.” or “Don’t try this at home” to the point where they have become pop culture clichés. These disclaimers and others like them frequently appear in advertisements as a way of discouraging viewers from imitating the behavior shown, and are thought necessary in order to help reduce the potential risk of a claim from those who are injured as a result of mimicking the potentially dangerous or violent activity depicted. As attorneys called upon to advise our advertising agency clients in these matters, we are frequently asked, “Do these disclaimers help?” “What is the risk associated with depicting potentially dangerous behavior in advertising?” and “How can that risk be minimized?”

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Privacy & Data Security Law Journal: Federal Trade Commission Proposes Principles Regarding Privacy in Online Behavioral Advertising - Published Article -  04/01/2008

By: Gary A. Kibel

The Federal Trade Commission recently released proposed principles regarding Online Behavioral Advertising. These proposals followed a public workshop and forum held on November 1-2, 2007, during which the FTC sought to analyze the issues surrounding such practices and whether or not there existed a genuine issue for the FTC to address.

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eMarketing and Commerce: 5 Tips to Minimize the Risk of Keyword Trademark Infringement - Published Article -  04/01/2008

By: Joseph J. Lewczak

In keyword advertising, search engine providers offer advertisers the ability to specifically target consumers through the sale of advertising space linked to keywords input by consumers as part of their search.

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The Metropolitan Corporate Counsel: Second Circuit Provides Clearer Picture On False Advertising Doctrine - Published Article -  02/01/2008

By: Marc J. Rachman, Joseph J. Lewczak and Christopher Poindexter

In August 2007, the Second U.S. Circuit Court of Appeals issued an opinion concerning certain DIRECTV advertisements that provided a clearer picture on its false advertising doctrine. It modified the District Court’s ruling banning DIRECTV from disseminating in any Time Warner Cable, Inc. (“TWC”) cable market certain television commercials and Internet advertisements found likely to violate the Lanham Act on literal falsity grounds. See Time Warner Cable, Inc. v. DIRECT TV, Inc., 497 F.3d 144 (2d Cir. 2007). The case concerned claims made in some of DIRECTV’s advertisements about the picture quality of DIRECTV’s high definition (“HD”) programming. In evaluating DIRECTV’s HD quality claims, the Second Circuit made three clarifications to its false advertising doctrine: (i) an advertisement can be literally false even though it does not explicitly make a false assertion, if the words or images, considered in context, necessarily and unambiguously imply a false message; (ii) the category of non-actionable “puffery” encompasses visual depictions that, while factually inaccurate, are so grossly exaggerated that no reasonable consumer would rely on them in navigating the marketplace; and (iii) the likelihood of irreparable harm may be presumed where the plaintiff demonstrates a likelihood of success on its literal falsehood claim and that given the nature of the market, it would be obvious to the viewing audience that the advertisement is targeted at the plaintiff, even though the plaintiff is not specifically identified by name.

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FTC:Watch: FTC Reviews Green Marketing Guidelines - Published Article -  01/14/2008

By: Ronald R. Urbach and Matthew Smith

As the issue of global warming becomes part of the mainstream consciousness, businesses are recognizing that embracing “Green” practices and becoming “Green” is good not only for the environment, but also for their public image and, hopefully, even for their bottom line. Voluntary corporate sustainability initiatives are flourishing, and companies as diverse as PepsiCo and the National Football League are increasingly touting their good environmental practices in advertising. Terms like “carbon neutral” are no longer just for scientists. They are concepts that consumers value and can affect their purchasing decisions.

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The Metropolitan Corporate Counsel: Advertising, Marketing And Promotions: What’s On The Agenda For 2008? - Published Article -  01/01/2008

An interview with Ronald R. Urbach and Adonis E. Hoffman, Senior Vice President and Counsel, American Association of Advertising Agencies



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