Comparative Advertising

How Bill Gates feels about these ads.


Paper on Ownership Of Ad Agency Ideas

American Association of Advertising Agencies White Paper: “Best Practice Guidance: Ownership of Agency Ideas, Plans and Work Developed During the New Business Procedure.”
Ad Age coverage of white paper here.


Before There Was Keyword Advertising . . .

. . . advertisers would cram ads onto matchbook covers. HT Drawn.


Time Warner Sues DirecTV Over Star Trek And Football Ads

Satellite TV provider DirecTV ran two types of ads. One was targeted at local markets and made claims regarding the availability of that market’s football team’s games on DirecTV and the alleged unavailability thereof on satellite. The other made claims as to the superiority of DirecTV’s high definition signal over cable (see the Star Trek version above). Time Warner protested and DirecTV agreed to stop making certain claims. It then, In Time Warner’s view, continued to make those claims in new commercials. Time Warner has now filed a complaint in the Southern District of New York against DirecTV alleging false advertising and breach of contract.
One aspect of the case will turn on the phrase “. . . for picture quality that beats cable . . .” which Time Warner alleges refers to its own HDTV signal and not its conventional cable signal. As providers’ HDTV signals are apparently equivalent in quality, TW is in the unfortunate position where to prove its case, it must emphasize the fungibility of the quality of its HD service.
The complaint was too large to upload – if you want a copy, email me.


Comparative Bubble Case Goes To ECJ

IPKAT on the lawsuit in which mobile phone operator 3G uses bubbles to make a comparative point about competitor O2 (which owns a registered trademark in bubbles).


Evidence Of Secondary Meaning In TV Catchphrases?

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I confess that I have used the expression “Whachoo talkin’ about Willis?” without ever having seen a single episode of “Diff’rent Strokes” (nor have I ever spelled ‘different’ as ‘diff’rent’) but I am aware where the phrase comes from.
Noted authority TV Land, is coming out with a special “The 100 Top TV Catchphrases.” Purists will be annoyed that they have combined lines from comercials (“I Can’t Believe I Ate The Whole Thing”), political expressions (“Read My Lips”), one time memorable lines (“I Don’t Like Spunk”) and what I would regard as true catchphrases, repeated phrases (“Aaay” or “D’oh!”).
Ironists will note that Hank Kingsley’s “Hey Now!” is on the list, as it is a parody of a catchphrase.
Moralists will note that two catchphrases on the list end in ‘Bitch!’, including Dave Chapelles’ ‘I’m Rick James, Bitch!”, which, coincidentally, is how our firm signs its demand letters.
At least one phrase is the subject of an IP case, ‘Here’s Johnny!’ Carson v. Here’s Johnny Portable Toilets, Inc., 698 F.2d 831 (6th Cir. 1983), which went off on rights of publicity. I’m sure there are more cases – please email me.
The question arises – if a catchphrase enters the lexicon, does that diminish or enhance its protectability? Does ‘Where’s The Beef?” signify Wendy’s, or Walter Mondale, or does it have it’s own significance at this point?
Note the trilogy above: does Homer’s parody refer to Johnny Carson, or to Jack Nicholson, or to both?
Here’s Johnny by Stephen Cox available here.
Here’s Johnny by Ed McMahon available here.


Popularity-Distortion Field

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Digg.com is a news-site that uses ‘social bookmarking.’ Readers submit third-party stories and the most popular stories are displayed on the home page. According to this article, one of the most popular posts last week was a laudatory story about a company named InventionLand, an inventor-submission firm (every patent lawyer in the audience just groaned). If you’re familiar with that genre, you are not surprised when I tell you that it is now claimed that the high placement of the article on Digg was due to a form of ‘spamming,’ in this case a concerted attempt by someone to deliberately promote the company.
People try to ‘game’ the algorithms of web services all the time. Word-stuffing, link farms, splogs and Digg-spamming are attempts to manipulate the results of various web processes.
Without referring to the specific news item mentioned above, might such attempts constitute torts? Two potential theories include (1) some species of false advertising, and (2) tortious interference with prospective advantage.
Might competitors have an unfair competition action against the ‘gamer’? When web services erroneously over-report ‘popularity’ or ‘relevancy’ of a webpage, is that a material misrepresentation of a quality of the gamer’s product?
Does the ‘gamed’ web service have a cause of action against the gamer (apart from breach of contract, if a contract existed)? Assume that a website such as Digg or Google base their reputation on the quality of their ‘popularity’ or ‘relevancy’ opinions. If the gamer, with knowledge of a web service’s algorithms, takes acts to manipulate those opinions, which manipulation may result in damage to the web service’s reputation, might this constitute some form of tortious interference with prospective advantage?
The above chart is a representation of the ‘Digg Effect,’ the onslaught of traffic caused by being ‘dugg,’ discussed here.


Political False Advertising Fact Pattern

Phone records of candidate for office (a district attorney, running for congress) shows call to ‘fantasy sex’ phone line, lasting 1 minute or less. A second call is then made immediately to a similar phone number belonging to a government office, which number shares last seven digits with the first phone number.
National political party of opponent runs ad characterizing first call as deliberate (including dramatization of phone sex worker).
Candidate releases phone records of the two calls, and states that the first call was a wrong number.
National political party refuses to pull ad.
Discuss possible causes of actions by candidate.
Discuss possible defenses available to political party relating to (1) broadcast of ads before public release of phone records; and (2) broadcasts made after release of phone records.
Note that statements that are literally true, but misleading in the context presented, may be actionable.
Discuss impracticality of court remedy two weeks before election.
Discuss ban on ‘coordination’ between national political parties and local candidates (some background here).
Background on fact pattern here here.


And The Name Of The Elephant In The Room Is Miscegenation

In 1934, Upton Sinclair, ‘muck-raking’ novelist, was the Democratic candidate for governor of California. Sinclair had previously run for office as a socialist, and Sinclair referred to his platform as the EPIC movement: End Poverty In California.
The opposition defined Sinclair as a communist. Some in the movie industry filmed actors getting off of box cars. The footage was presented to movie audiences as authentic film of hobos migrating to California, in anticipation of receiving hnad-outs, should Sinclair win.
Sinclair was defeated.
Here is an that the Republican National Committee is running in Tennessee that criticizes the Democratic candidate, Harold Ford. The blurring of the line between person-in-the-street testimonials, and actors reading scripted lines is, to put it mildly, troubling.


"Should Publications Be Liable For Running Fraudulent Ads?"

WSJ Law Blog: “Should Publications Be Liable For Running Fraudulent Ads?