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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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Legal Backgrounder: Keyword Advertising Users Search For Legal Antidote - Published Article -  07/13/2007

By: Joseph J. Lewczak and Peter C. Welch

In early April, the escape of a snake belonging to a Google employee at Google’s New York office (“the Googleplex”) sparked a brief reptile-induced panic.1 Unfortunately for the search engine community, pet jailbreaks are not the only cause of concern dogging, or slithering after, the medium. Just as the novel opportunities Internet companies have offered to their employees have created new challenges ripe for resolution by a heroic Samuel L. Jackson,2 new business models engendered by the Internet have created new battle lines. Perhaps the most significant of these challenges relates to search engine marketing and, more specifically, to the sale of trademarks as keywords triggering advertisements.

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The Metropolitan Corporate Counsel: Death Pays: The Fight Over Marilyn Monroe’s Publicity Rights - Published Article -  07/01/2007

By: Sara L. Edelman

Just because a celebrity is dead, doesn’t mean she can’t try and earn a living. Take, for example, Marilyn Monroe. Since the blonde bombshell’s estate teamed up with the talent giant CMG Worldwide, Inc. (“CMG”) in 1996, the licensing of Marilyn Monroe’s name and image has pulled in over $30 million in revenues. Forbes Magazine routinely ranks Monroe as one of the top grossing dead celebrities; in fact, she earned a cool $8 million just last year alone. Not bad for someone who has been dead almost 45 years. Thanks to CMG’s efforts, Monroe’s name, voice and likeness are used to sell a vast array of products, including refillable lighters, vodka, cars, wine, leather furniture and jeans.

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The Metropolitan Corporate Counsel: Self-Regulation: The Advertising Industry's Commitment To Truth and Substantiation In Advertising  - Published Article -  05/01/2007

Interview with: Ronald R. Urbach and C. Lee Peeler.

Editor: Mr. Urbach, would you tell our readers something about your professional experience?

Urbach: I am co-chair of Davis & Gilbert’s advertising, marketing, promotion and media department and have been an advertising lawyer at D&G for 30 years. From concept to distribution, we represent advertisers and their advertising and marketing agencies in all contractual, intellectual property, media and business law issues that relate to advertising, media, promotion and marketing. In our regulatory practice, we interact with the Federal Trade Commission, state regulatory agencies, state attorneys general and the industry’s self-regulatory bodies — NAD, the National Advertising Division of the Council of Better Business Bureau (“CBBB”), CARU, CBBB’s Children’s Advertising Review Unit, and NARC, the National Advertising Review Council.

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TRUSTe: Privacy Concerns Grow As Marketers Flock to Social Networking - Published Article -  05/01/2007

By: Gary Kibel

Marketers are excellent at making use of popular cultural trends and the latest fads, as in the case of social networking. In just a short time, the use of social networking and user-generated content has exploded on the Internet, and may soon do so in the wireless world as well. So naturally, marketers have sought to jump on the bandwagon.

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The Metropolitan Corporate Counsel: Message To Mr. Trump: Tune In Here To Win Sweepstakes Lawsuit Against “Apprentice” - Published Article -  04/01/2007

By: Joseph J. Lewczak

For decades, sweepstakes and game of chance promotions have been used as effective marketing techniques to sell products and services. At any given time, there are literally hundreds, possibly thousands, of sweepstakes offered by marketers to help entice consumers to buy more products. A recent review online turned up sweepstakes conducted by Coca-Cola, MTV Networks, Sony Pictures, Circuit City, Hershey’s, Nabisco, Xbox, Microsoft Office, and Liberty Mutual, just to name a few.



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