Applying Lexmark, ED Pa. Holds 43(a)(1)(A) Claim May Be Brought Against Competitor But Not Competitor’s Customers

Plaintiff extracts spring water. One defendant allegedly extracts well water, which it misrepresents as spring water to other defendants, who are bottlers, and who also misrepresent the water as spring water.

Applying Lexmark, court holds that bottler defendants’ alleged false statements do not proximately injury plaintiff (as opposed to the false statements by extractor defendant,  a competitor of plaintiff, which statements could proximately injure plaintiff).

43(B)log discussion here.


Stuff I've Gotten Free Because I Blog

Let’s see. Oxford Press sent me a review copy of Bill Patry’s new book (I should get around to reading it). A law firm marketing company sent me a book about law firm marketing, then asked me to plug one of their seminars, which I didn’t. MR HAPPY CRACK sent me a MR HAPPY CRACK mouse pad after I posted something about them. The YANKEE HATER guy sent me a YANKEE HATER hat after I posted something about him. I’m pretty sure that’s it for free stuff in seven years of blogging, which is pathetic.
I get asked to post about various services with a stated or implied quid-for-quo, which I never agree to. I only plug blogs or services when nothing in return is offered (what is wrong with me). I don’t accept advertising. It’s not that I can’t be bought, I just haven’t received the right offer.
I do post items about clients or colleagues with whom I do business and don’t always disclose the relationship, usually because I don’t think I’m impliedly endorsing anyone or anything by reporting on something without comment.
Which brings me to today’s topic: FTC to Rule Blogs Must Disclose Gifts or Pay For Reviews:

On Monday, the F.T.C. said it would revise rules about endorsements and testimonials in advertising that had been in place since 1980. The new regulations are aimed at the rapidly shifting new-media world and how advertisers are using bloggers and social media sites like Facebook and Twitter to pitch their wares.
The F.T.C. said that beginning on Dec. 1, bloggers who review products must disclose any connection with advertisers, including, in most cases, the receipt of free products and whether or not they were paid in any way by advertisers, as occurs frequently. The new rules also take aim at celebrities, who will now need to disclose any ties to companies, should they promote products on a talk show or on Twitter.

Ftc Guidelines Endorsements


FCC Proposed Rule Making Re Product Placement

We solicit comment on the relationship between the Commission’s sponsorship
identification rules and increasing industry reliance on embedded advertising techniques. Due, in part, to recent technological changes that allow consumers to more readily bypass commercial content, content providers may be turning to more subtle and sophisticated means of incorporating commercial messages into traditional programming.
As these techniques become increasingly prevalent, it is important that the sponsorship identification rules protect the public’s right to know who is paying to air commercials or other program matter on broadcast televisionand radio and cable. Accordingly, we seek comment on current trends in embedded advertising and potential changes to the current sponsorship identification regulations with regard to embedded advertising.

Read this document on Scribd: FCC rule making


Will The Lucky Case Game Be Lucky In Court?

lucky case game.jpg
American’s sweetheart advertising lawyer, Myka Todman, notes the class action against the show “Deal Or No Deal” and, as luck is the residue of good legal advice, advises us as follows:
The state Supreme Court in Georgia is hearing a class action law suit against NBC Universal and the producers of the hit show “Deal or No Deal” based on its Lucky Case Game. Before you rush to the show’s official web site, the Lucky Case Game is “taking a short break”. In case you haven’t seen the show, the Lucky Case Game was an interactive text message promotion allowing viewers a chance to play and potentially win a prize during each broadcast. The viewers could participate in the promotion, either via the Internet or text message, by watching, selecting one of six gold cases, and submitting the number of the winning case. According to the research analyst at Bestuscasinos.org/real-money/, it would appear that the suit alleges that the Lucky Game constitutes illegal gambling because even though viewers were invited to participate online for free, entrants who played via text message were charged a premium fee of 99 cents to enter.
In light of this suit and others which are currently pending, it seems like a good time to briefly review some promotion basics so as to avoid conducting an illegal lottery.
1. Federal and state laws prohibit lotteries unless they are state run. To avoid violating the illegal lottery laws, one of the following elements must be removed from your promotion: chance, consideration or prize.
2. Are you conducting a sweepstakes (game of chance) or a contest (game of skill)? Decide and stick to it. Sweepstakes must be primarily based on chance, as opposed to contests where the outcome must be predominately related to some measurable form of skill. When running a skill contest, do not inject chance into the promotion by picking the winner out of a hat in the event of tie.
3. The “Official Rules” govern a promotion from start to finish and considered a legally binding contract between the sponsor and the entrants. Remember that the rules must contain certain disclosures (e.g., eligibility requirements, odds of winning, number/value of prize(s), deadlines, limitations of liability). Draft the rules carefully, considering all factors, as they cannot be changed midway through the promotion. Because this is a contract between the sponsor of the promotion and the entrant, the Official Rules cannot be amended unilaterally once the promotion has commenced.
4. Limit eligibility to the United States or ensure that you have competent legal counsel familiar with international laws to avoid violating the consumer protection and promotion laws of all countries. In addition, don’t overlook the fact that each state has its own promotion law regime with which you must comply. Tread lightly.
5. What do you want from the promotion? Do you want the right to use all entries (e.g., photos, essays, videos) and how (e.g., print ads, online, in future campaigns)? Will you be returning the entries? Might you want the finalist(s)/winner(s) to participate in interviews related to your brand and/or the promotion? Draft these rights into the rules so that the entrant is on notice and tie acceptance of the prize to the granting of rights so that it is all dealt with ahead of time.
6. Advertise your promotion with caution and make as many disclosures as possible. The rules and regulations vary depending on the type of advertisement (e.g., print, radio, TV, Internet) but all should contain some form of abbreviated rules. For example, the start and/or end dates, eligibility requirements, odds of winning and sponsor name and address should be listed. As with everything else, all ad copy should be reviewed by legal counsel.
7. Consumer generated content is hot. Inviting consumers to create content is a big draw and makes the consumer feel closer to the brand. That said, you have no control over the submission and may be held responsible for its content. There are ways around this – drafting the rules so that no infringing materials may be used (e.g., no music), screening all submissions, disqualifying all submissions containing content not original to the entrant, providing entrants with a toolbox of content for use in the submissions – but no matter what safeguards you put in place, if you plan to place the submissions on, for example, your web site, you should expect some additional headaches along the way. See Doctor’s Associates, Inc. v. QIP Holders, LLC, 2007 U.S. Dist. LEXIS 28811 (D. Conn. April 19, 2007).
8. Plan ahead. Keep in mind that there are many moving parts involved in running a sweepstakes or contest and you need time to keep things running smoothly. By way of example, there are some states that have registration and bonding requirements which must be complied with prior to the launch date. Also, remember that once a winner has been selected in a skill contest or game of chance, there is still work to be done – you need time to contact the winner and send out and receive certain documents (e.g., affidavit of eligibility, publicity/liability release) before making any announcements or you may find yourself with an uncooperative winner and no recourse.
9. Include a privacy statement or a link to your policy in the Official Rules. Entrants should be told exactly how their personally identifiable information will be used. Such information must be used in accordance with your guidelines which are legally binding. Bear in mind that if you conduct a promotion geared towards children under the age of 13, the Children’s Online Privacy Protection Act will apply.
10. As mentioned, there is a lot of confusion surrounding entry into a promotion through a text messaging component. Right now, this should probably be avoided at all costs and if not, under no circumstances should you include a premium fee on top of the standard text messaging fee charged by the carrier. Otherwise, you are likely undermining the entire promotion in the process.


What Animal Is Your Lawyer?

WSJ: “Provocative Lawyer Advertising: Fair or Foul?

To a large degree, the story focuses on Florida. The Sunshine State prohibits slogans, jingles and “manipulative” visual depictions, among many other no-no’s. The Florida bar also has a thing about certain animals. Pit bulls are verboten (as was the advertisement pictured), and the bar has also stricken ads that used images of a “tiger roaring without sound” and a “shark in attack mode.”

We’re sorta half-border collie, half-yellow lab. Smart, fun, but really vicious if you touch our client’s rawhide.


Podcast on Avvo and Rate-A-Lawyer

This Week In Law: Denise Howell and the TWIL gang interview Mark Britton, CEO of Avvo, the new lawyer rating service.


New Online Advertising Blog

New online advertising blog INSIDE CHATTER by ZDNET veteran Donna Bogatin.


Flagpole Sitta

A NY-based web company put something cool on the web and I thought “it must be fun to work with those people, I wonder who does their TM work.” Some research suggested that perhaps no one was yet.
Now, if this was a year ago, I could send an email to the GC or CEO and say ‘I liked what you did, etc, When it comes time to consider trademark and copyright counsel, I hope that you will consider our firm,’ and provide a link to the Blog.
However, under the new rules for lawyer advertising in NY, electronic communications to people who are not clients, or friends and family, are prohibited (1200.8(a)(1).
Sending this message on letterhead has two drawbacks. From a marketing point of view it’s less effective because if they read it while not at a computer, they can’t immediately click through to the website. And a copy of the letter would have to be filed with the NY State discliplinary committtee. (1200.8(c)(1))
I could send a professional calling card which states my firm’s emphasis (1200.7(a)(3) (you can’t call it a speciality), but then I’d have to pick out paper stock and font style, it would take several weeks, and a calling card wouldn’t be a personalized message.
So I’m left with the website, which is OK as long as I indicate on the website that this is lawyer advertising (1200.6(f)), use a domain name that reflects my name (1200.7(e)), don’t use a nickname that imples an ability to obtain results (i.e. “The Enjoiner”)(1200.6(c)(7) and archive the site (1200.6.(g)).
But it’s unlikely that anyone at the prospect reads the Blog.
So what I can do is put a coded message in this post and if you can figure out which company I’m talking about, and you’re friends or family with them, drop them a line and tell them what a great firm this is. However you can’t be a paid because 1200.6(c)(2) prohibits (undisclosed) paid testimonials, and you can’t be an actor pretending to be my client (1200.6(c)(4).


"Billboard Ban in Sao Paulo"

IHT: “Billboard ban in Sao Paulo Angers Advertisers


"Makers Of Enviga Drink Face False Advertising Suit"

CBS4Denver: “Makers Of Enviga Drink Face False Advertising Suit“: Health watchdog group sues makers of ENVIGA drink for negative calorie claim for green tea extract/caffeinated beverage.