This Post About Lawyer Advertising Is Predominantly Information And Partly Aggravated

The NY State Bar Association (my bar association) has proposed rules on advertising by lawyers. As far as I can tell, they seem to embrace blogs, and, in my initial read, treat them less favorably than, for example, the unsolicited hard copy material I receive everyday from law firms, who, I imagine, have purchased mailing lists of lawyers from whom, I wonder. As example of a rule that strikes me as odd, it seems that I have to print out a copy of each new post and mail it to the attorney disclipinary committee on advertising. I probably post 1000 items a year.
Proposed rules here. Commentary from Prof. Volokh here.. Comments are due November 15.


Warning: Time Waster – Sloganizer

Fill in a name and this web app will sloganize it.


You Have To Give Email Recipients A Chance To Opt Out

News.com: Kodak pays $26k to settle charges that it sent out 2 million unsolicited emails that did not provide recipients with a method of opting out of future emails.


Yahoo Requires U.S. Advertisers To Block Non-U.S. Traffic?

Boing Boing: ‘Yahoo: if you use our ads, you have to block non-US visitors.’


Four Out Of Five Comparative Statements May Be Misleading

Pfizer, maker of LISTERINE, sues Proctor & Gamble over claim that four out of five dentists would recommend CREST mouthwash, in the Southern District of NY.
UPDATE: From the complaint: P&G sent the Crest product to 344 dentists who were asked to use the product for one week. The dentists were paid $75 to participate in a survey. 269 dentists participated in a phone survey where they were asked “Based on your experience using this oral rinse, which of the following statements best describes your most likely recommendation of this oral rinse to your patients?” According to the complaint, P&G arrived at the 4 out of 5 number by combining those who responded that they ‘woud recommend’ the product with those who responded that they ‘would recommend only if their patients asked about it.’ Pfizer alleges that this hypothetical recommendation does not consitute proper substantiation that health professionals recommend the product in their actual practice.


NY Times on Apple/Lugz Commercials

Is Imitation Flattery, Theft or Just Coincidence?‘ – NY Times article on two similar commercials.


Is Paid Word-Of-Mouth Advertising Deceptive?

This letter from Commercial Alert, an advocacy organization, to the FTC, argues that ‘buzz marketing’ (using paid lay people to spread word-of-mouth) can be deceptive.  Tidbit: Procter & Gamble reportedly has 250,000 teenagers on its WOM payroll.


Is Black Hat SEO False Advertising or Unfair Competition?

Mark Cuban (Dallas Maverick owner and founder of blog search engine Ice Rocket) posted “Get Your Blogspot Shit Together Google” yesterday, and the Wall Street Journal ran “‘Splogs’ Roil the Interent, and Some Blame Google,’ today, regarding spam blogs or splogs, created to improve search engine rankings.

Might ‘black hat’ search engine optimization techniques subject a company to 43(a) or state unfair competition exposure, perhaps for false advertising?

Assume that a splogger that has no traffic and no inbound links.  Then it uses SEO techniques that make it the number one hit for the relevant keyword.  Has that splogger used a false or misleading descriptions of fact, or false or misleading representations of facts, in commercial advertising or promotion, that misrepresented the nature, characteristics, qualities of their goods/services?  While an unknown entity is free to advertise itself, does a number one ranking in a search engine represent anything?  Google argued in the Search King case that its rankings constitute commercial speech by Google as to its opinions.  Does the splogger induce the search engine into making misleading commercial speech?