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Advertising, Marketing & Promotions Alert >> “Fictitious Sales” Litigation Advances In California - Alert -  07/29/2013

A consumer’s lawsuit against Kohl’s Department Store – which was filed as a class action – alleged that the consumer had purchased several items that were advertised as being substantially reduced from their “original” or “regular” prices but that were, in reality, routinely sold by Kohl’s at the advertised “sale” prices. This lawsuit is moving forward as a result of a recent decision by the U.S. Court of Appeals for the Ninth Circuit. The decision highlights the risk to retailers of advertising or promoting “fictitious sales.”

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Practical Law Company: Trademark Laws: New York - Published Article -  07/15/2013

By: Marc J Rachman and Joy J. Wildes

A Q&A guide to New York laws protecting trademarks. This Q&A addresses state laws governing trademark registration, infringement, dilution, counterfeiting, unfair competition and deceptive trade practices.


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Advertising, Marketing & Promotions Alert >> Entry Fees Now Permitted for Skill-Based Contests in Vermont - Alert -  06/05/2013

By: Joseph J. Lewczak and Allison Fitzpatrick

As of April 26, 2013, sponsors of skill-based contests in Vermont may require an entry fee or other consideration for entry into skill games.

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Advertising, Marketing & Promotions Alert >> FTC Sends Educational Letters to App Developers to Help Prepare for COPPA Changes - Alert -  06/05/2013

By: Allison Fitzpatrick; Alison Winter

In advance of the July 1st effective date of the Federal Trade Commission (FTC) amendments to the Children’s Online Privacy Protection Act (COPPA), the FTC sent more than 90 letters to domestic and foreign app developers in an effort to help them comply with these new requirements. Click here for a previously authored D&G Alert regarding these COPPA amendments.

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Advertising, Marketing & Promotions Alert >> FTC Issues Updated FAQs on Amended COPPA Rule - Alert -  05/07/2013

By: Allison Fitzpatrick and Alison Winter

The Federal Trade Commission (FTC) recently issued updates to its frequently asked questions (FAQs) relating to the FTC’s amendments to the Children’s Online Privacy Protection Act (COPPA), which will take effect on July 1, 2013. Click here for a previously authored D&G Alert on this topic. In response to a request by industry organizations to reconsider the July 1st deadline, the FTC recently decided by unanimous vote to retain the implementation date for the COPPA amendments.


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Advertising, Marketing & Promotions Alert >> Revised Florida Law Limits Promotions and Sweepstakes - Alert -  04/25/2013

By Joseph J. Lewczak; Allison Fitzpatrick

 Florida’s recently revised Game Promotion Law limits the ability of for-profit businesses to conduct sweepstakes for advertising and marketing purposes and prohibits non-profits and charitable organizations from operating any sweepstakes.

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Advertising, Marketing & Promotions Alert >> SEC Confirms Companies May Use Social Media to Announce Material Information - Alert -  04/11/2013

By: Ralph W. Norton; Gary A. Kibel; Allison Fitzpatrick; Joseph A. Sena; Jr.

The Securities and Exchange Commission (SEC) clarifies in a recent report that companies may use social media outlets such as Facebook and Twitter to announce material information in compliance with Regulation FD (Fair Disclosure), so long as investors have been alerted as to which social media channel will be used to disseminate this information.


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The National Law Journal: 2013 Midsize Hot List - Published Article -  04/08/2013

Davis & Gilbert’s business strategy is laser-focused on one industry—advertising. Neither a litigation shop, a mergers and acquisitions specialist nor a regulatory firm, the New York shop provides a full menu of legal services demanded by ad agencies, buyers and media outlets. Matters range broadly from false advertising to copyright infringement to lease negotiations for office space.

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Advertising, Marketing & Promotions Alert >> Business Books and Brand Building Rights and Permissions - Alert -  04/08/2013

By Mary M. Luria

More companies are recognizing the value of creating and publishing, both to the trade book public and to a more limited group of business contacts and prospects, what we view as "books," be they print or electronic.


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PRWeek: Celebrity Behavior Can Be Difficult to Endorse - Published Article -  04/03/2013

By Michael C. Lasky

Marketers and their PR firms typically make sure to include morals and non-disparagement clauses in their celebrity endorsement contracts. Social media has led to an increasing variety of ways celebrity endorsers can commit public acts that may reflect badly on or embarrass a brand. Some recent situations strongly suggest that marketers and their agencies would be wise to review and revise the termination.


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Council of Public Relations Firms: Advertising, Consumers, and the New FTC Disclosure Guidelines - Published Article -  04/01/2013

By Gary A. Kibel

Is your firm up on the latest FTC guidelines governing online advertising and the proper consumer disclosures required by law? It better be.

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Advertising, Marketing & Promotions Alert >> Supreme Court’s Copyright Decision Gives a Boost to Gray Market Retailers - Alert -  04/01/2013

By Brooke Erdos Singer; Joy J. Wildes; Kevin Blum

The United States Supreme Court has ruled in Kirtsaeng v. John Wiley & Sons, Inc. that the federal copyright law’s "first sale" doctrine – which allows a lawful owner of a copy of a protected work to sell, rent, or give away that copy – trumps the provision in the copyright law that limits the importation of copyrighted works into the United States. The court’s decision permits gray market goods to be brought into, and sold in, the United States without violating copyright law.


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Advertising, Marketing & Promotions Alert >> FTC Updates Online Advertising Disclosure Guidelines - Alert -  03/28/2013

By Ronald R. Urbach; Allison Fitzpatrick

The Federal Trade Commission (FTC) updated its online advertising disclosure guidelines to advise advertisers on how to make clear and conspicuous disclosures on mobile and social media platforms.



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Advertising, Marketing & Promotions Alert >> Trademark Clearinghouse to Begin Accepting Submissions to Protect Domain Names - Alert -  03/25/2013

By Jeffrey C. Katz; Gary A. Kibel

A newly created Trademark Clearinghouse, set up as a global repository for trademark data in connection with Internet domain names, will begin accepting submissions on March 26, 2013, to support both the registration of domain names in new generic top-level domains (gTLDs), as well as dispute resolution. Owners or licensees of valuable brands – especially those that could be used by another entity – may want to consider registering their trademarks with the Clearinghouse.


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Advertising, Marketing & Promotions Alert >> After Recent Celebrity Endorser Social Media Flubs, Contract Changes May Be Advisable - Alert -  03/06/2013

By Howard R. Weingrad; Anne DiGiovanni

Advertisers typically make sure to include protective provisions, such as morals and non-disparagement clauses, in their celebrity endorsement contracts. However, the growth of social media has led to an increasing variety of ways that endorsers can commit public acts that may reflect badly on or embarrass an advertiser, suggesting that it may be time to review and tighten up celebrity contract termination language.

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Is 'Native Advertising' Here to Stay? - Published Article -  03/05/2013

By Vejay G. Lalla

What is native advertising? Is it effective? Recently, at the Social Media Insider Summit, the panelists on the “native” panel tried to break it all down.

Before the panel dove in, the editor of MediaPost and moderator Joe Mandese (@jmandese) shared with the audience the genesis of the term “native advertising.” It appears that the term“native monetization” was first coined by Fred Wilson during a keynote speech during an OMMA conference. “Native monetization” has now become “native advertising.”


Bloomberg BNA's Privacy & Data Security Law Resource Center // Rockefeller Reintroduces Legislation to Set Mandatory Do-Not-Track Rules - Press Mention - 03/05/2013

Gary A. Kibel was quoted in Bloomberg BNA's Privacy & Data Security Law Resource Center, "Rockefeller Reintroduces Legislation to Set Mandatory Do-Not-Track Rules."

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Advertising, Marketing & Promotions Alert >> Why The FTC Was Not Wonderful To POM - Alert -  02/20/2013

The Federal Trade Commission (FTC) has found that claims made by POM Wonderful LLC (POM) about its pomegranate juice products in 36 distinct ads and promotional materials were false and misleading based on the absence of proper substantiation for the claims, which the FTC concluded meant well-designed, well-conducted, double-blind, randomized controlled clinical trials (RCTs).

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Advertising, Marketing & Promotions Alert >> FTC Announces New Mobile Privacy Guidelines on Same Day Social Networking App Settles Privacy Charges - Alert -  02/11/2013

By Allison Fitzpatrick, Gary A. Kibel and Joseph J. Lewczak

The Federal Trade Commission (FTC) issued a report containing specific recommendations on improving mobile privacy disclosures for mobile platforms, app developers, advertising networks, and other third parties.

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Advertising, Marketing & Promotions Alert >> FTC Amends COPPA To Strengthen Children's Privacy Protections - Alert -  01/10/2013

By Allison Fitzpatrick and Alison Winter

The Federal Trade Commission (FTC) adopted final amendments to the Children’s Online Privacy Protection Act (COPPA) to strengthen children’s privacy protections and to give parents greater control over the personal information that websites and online services collect from children under thirteen.


Davis & Gilbert Promotes Shira Franco and Oriyan Gitig to Counsel - Press Release - 01/07/2013

Davis & Gilbert is pleased to announce that Shira Franco and Oriyan Gitig, have been elected Counsel effective January 1, 2013.

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Law 360: The Pace Of Privacy: A Look Back At 2012 - Published Article -  12/19/2012

As we each draft our own wish lists this holiday season, it is clear that for U.S. regulators the wish for effective regulation of privacy and online consumer data collection continues to be at the top of their lists. I say "continues," because last year at this time many believed that this wish would certainly come true with comprehensive privacy legislation in 2012, given that privacy appeared to be one of the few areas with broad bipartisan support. Here we are on the eve of 2013, and no such laws have yet been enacted. Privacy and data collection concerns are not going away. With the major developments in this area this past year, you can expect these issues to be front and center in 2013.

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Advertising, Marketing & Promotions Alert >> FTC Highly Critical of Mobile Apps’ Respect for Children’s Privacy - Alert -  12/19/2012

By Allison Fitzpatrick and Alison Winter

In a highly critical report, the Federal Trade Commission (FTC) found that mobile applications (apps) have demonstrated "little progress" in addressing privacy concerns for children’s data, concluding that many of the most popular mobile apps for children fail to inform parents about what types of personal information the apps collect from children, with whom that information will be shared, and how that information will be used.

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Huffington Post: What You Need to Know About Instagrab - Published Article -  12/19/2012

How many people actually read a site’s Terms of Use -- that link at the bottom of a site which brings you to a 20-page document written in cumbersome legalese? Well, in many instances, the answer is no one reads them except for the lawyers who wrote them. So imagine Instagram’s surprise when the entire Instagram community actually read Instagram’s revised Terms of Use (which go into effect on January 16, 2013), igniting a firestorm of controversy.

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Advertising, Marketing & Promotions Alert >> Post-Mortem Right of Publicity under New Jersey Law Is Limited to 50 Years - Alert -  12/05/2012

By Howard R. Weingrad and Sara L. Edelman

A federal district court in California has ruled that the post-mortem right of publicity under New Jersey common law lasts for no more than 50 years after the death of the individual whose rights are sought to be enforced.

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Advertising, Marketing & Promotions Alert >> FDA Says Pitch Letter and Press Release Were ‘False or Misleading’ - Alert -  11/29/2012

By Stuart Lee Friedel and Joseph A. Sena, Jr.

The Food and Drug Administration (FDA) has determined that a pitch letter to media outlets from a pharmaceutical company’s public relations firm and an accompanying press release were "false or misleading." The pitch letter omitted important risk information associated with the use of the drug and the pitch letter and press release presented unsubstantiated superiority claims.

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Bloomberg BNA Social Media Law & Policy Report: Pharma Challenges: Adverse Event Reporting and Social Media - Published Article -  11/14/2012

Pharmaceutical companies fear that encouraging consumers to post publicly on social media sites will inundate them with reports of adverse drug experiences, which they may be required to file with the Food and Drug Administration or risk potential liability. Fears surrounding these reporting regulations and the FDA’s lack of direction on the issue has prevented many pharmaceutical companies from taking real advantage of the spoils social media marketing has to offer today’s brands. While awaiting the FDA’s next moves, the authors write, we can expect that the majority of pharmaceutical companies will continue to navigate cautiously social media’s waters, searching for more traditional opportunities to take a dip in when they advertise online, where greater controls on content are afforded to advertisers and regulatory scrutiny is more of a known entity.


Davis & Gilbert’s Advertising, Real Estate and Employment Law Practices Ranked in 2013 U.S. News – Best Lawyers “Best Law Firms” Rankings - Press Release - 11/08/2012

New York, NY, November 5, 2012 - Davis & Gilbert is pleased to announce that its Advertising, Marketing & Promotions Practice Group achieved a first tier ranking, once again, in the categories “National - Advertising Law” and “New York City - Advertising Law” in the 2013 “Best Law Firms” rankings by U.S. News Media Group and Best Lawyers. In addition, the Real Estate Practice Group was recognized for both the Nationwide (Tier 2) and New York City (Tier 1) categories. The firm was also recognized in the New York City category for “Employment Law – Individuals” (Tier 2).

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Advertising, Marketing & Promotions Alert >> Court Finds Press Release Was a “Commercial Use” in Right of Publicity Case - Alert -  10/17/2012

By Howard R. Weingrad and Sara L. Edelman

A federal district court in California has refused to overturn a jury verdict in favor of General Charles Yeager on his statutory right of publicity claim against AT&T Mobility LLC, rejecting AT&T’s argument that a press release in which Yeager’s name was used could not be characterized as an advertisement under the California law.

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Advertising, Marketing & Promotions Alert >> FTC Finalizes New Green Guides - Alert -  10/11/2012

By Ronald R. Urbach and Matthew E. Smith

Two decades after the Federal Trade Commission (FTC) first issued Guides for the Use of Environmental Marketing Claims (Green Guides), and nearly five years after it began its latest review of them, the FTC has released new and updated Green Guides that offer today’s marketers important guidance on how to properly make environmental claims in advertising and marketing materials as well as on product labels and packaging.

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The Huffington Post: Advertising Week: A Time of Introspection and Inspection - Published Article -  10/08/2012

By Ron Urbach

Advertising is an art as well as a science. It is passion and creativity infused into the business of marketing and communications. It is both creative and strategic; it is both chaos and focus. It’s a reflection of who we are, and this week the entire beautiful, messy industry comes to New York City for the tent-pole event called Advertising Week.


2012 New York Super Lawyers and Rising Stars-Metro Edition Honors Nine Davis & Gilbert Partners - Press Release - 10/02/2012

New York, NY, October 1, 2012 – Nine Davis & Gilbert partners have been selected to appear on the 2012 New York Super Lawyers and Rising Stars-Metro Edition list in the areas of First Amendment/Media/Advertising, Employment & Labor, Intellectual Property Litigation, Business Litigation and Real Estate. In addition, Neal H. Klausner and Gerald R. Uram were ranked as Top 100 New York Super Lawyers. These lawyers received the highest point totals in the New York Metro nomination, research and review process.

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Advertising, Marketing & Promotions Alert >> Artist Sues Twitter over DMCA Takedown Requests - Alert -  10/01/2012

By Gary A. Kibel and Allison Fitzpatrick

Photographer Christopher Boffoli sued social media site Twitter alleging copyright infringement and failure to comply with the Digital Millennium Copyright Act (DMCA) by not removing or disabling access to what he claims to be infringing uses of his photos upon his request.


Leading Advertising Attorney Ron Urbach Launches Industry Blog, Madison Ave Insights - Press Release - 09/28/2012

Since its inception, the world of advertising has been cloaked in magic: the industry is driven by creativity, business and innovation; is extremely fast-paced; and is often portrayed with a hint of glamour. Outsiders are eager to know more, and insiders thrive on industry buzz and constant change.Ron Urbach’s advertising industry blog, Madison Ave InsightsSM (www.madisonaveinsights.com), will peel back the curtains on Madison Avenue – the street that has long been synonymous with the world of advertising – and give readers a firsthand look into the fast-paced world of the industry.

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Advertising, Marketing & Promotions Alert >> Local Radio Contest with “Misleading” Terms Ends in FCC Fine - Alert -  09/19/2012

By Allison Fitzpatrick and Matthew E. Smith

The Federal Communications Commission (FCC) fined CBS Radio Holdings, Inc. (CBS) $10,000 after concluding that CBS’ North Carolina radio station (WBAV-FM) twice posted erroneous information on the station’s website about a contest the station was running – even though the station’s on-air announcements had correctly stated the material terms of the contest.

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Advertising, Marketing & Promotions Alert >> Mobile Marketing and Privacy: New Developments - Alert -  09/19/2012

By Gary A. Kibel

Privacy issues have long been a concern to members of the mobile marketing industry. However, a number of recent developments have brought these issues to the forefront as regulators, lawmakers and consumers begin to pay closer attention to the methods currently used to collect and use data in the mobile environment.


Best Lawyers Distinguishes Nine Davis & Gilbert Partners in the Areas of Advertising, Employment, Litigation, and Real Estate - Press Release - 09/19/2012

Davis & Gilbert is proud to announce that nine of the firm’s partners have been recognized in the 2013 edition of The Best Lawyers in America, the oldest and most venerable peer-review publication in the legal profession.

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