For those of you in desperate need of Christmas present ideas for a New England Patriots fan, you can rest assured that your ironic backup option – a copy of the romance novel, A Gronking to Remember – is still available for sale. Truth be told, the self-published volume was not in serious danger of becoming unavailable, but the recent Sixth Circuit opinion in Roe v.… More
Category Archives: Social Media
We just got back from the Association of National Advertising (ANA) and Brand Activation Association (BAA) Marketing Law Conference in Chicago, held earlier this week. With hundreds in attendance, and dozens of speakers presenting over three days, it was a great opportunity to learn about “hot” trends and key issues in the advertising and marketing space from an array of stakeholders – marketers, attorneys, regulators,… More
Before the social media era really kicked into gear, I was representing a defendant in a defamation case who was being sued by a very wealthy plaintiff. Because of his charitable generosity, the plaintiff’s name was on everything in town (I’m not saying which town), including schools, buildings, bus stops and highway exit signs. There was even (I swear this is true) a statue of the plaintiff’s mother in the city park across from the courthouse.… More
I am certainly not the only person who has been lured into purchasing a too-good-to-be-true, deeply discounted product online, only to learn that what I actually purchased was a subscription to buy more stuff. Kate Hudson’s athletic wear company Fabletics hooked me about a year ago when I saw a cute workout outfit advertised on social media for only $25.00. I purchased the outfit on Fabletics’ website,… More
This month, the Federal Trade Commission (“FTC”) issued a revised version of “Endorsement Guides: What People Are Asking,” a series of questions and answers pertaining to the conduct of “influencers,” that is, anyone who endorses a product or service. The basic premise of the Endorsement Guides is that, if there exists a material connection between the influencer who is endorsing the product and the company that is marketing the product (e.g.,… More
Advertising can take many forms, including statements about a company’s products on websites and social media platforms. A wrong step can result in serious consequences, including legal challenges from competitors, consumers, the Federal Trade Commission, and other regulatory agencies.
Watch this webinar to learn how you can protect your company against legal challenges based on its advertising practices. You will also learn what options are available if your competitors are making false or misleading statements in their advertisements.… More
As all aspects of business inexorably shift toward online, it is not surprising that intellectual property infringement, cybersquatting, and related internet abuses abound. Luckily, there are various procedures available by which aggrieved companies can seek relief short of litigation.
On March 14, 2017, the Consumer Review Fairness Act (CRFA) will officially invalidate a whole bunch of consumer contract clauses that pertain to online reviews.
During the last decade, we started hearing reports about professionals using form contracts to prevent their clients or patients from publishing negative online reviews. Here’s an example of how it worked: You showed up for a dentist appointment and,… More
Just in time for the holiday season, we present our third annual Trademark Year in Wine and Beer, a wrap-up of alcohol-related trademark and trademark-ish disputes dating back to December 2015, when we published our last edition. Our scope includes lawsuits brought in U.S. Courts, actions before the Trademark Trial and Appeal Board (“TTAB”), arbitrations pursuant to the Uniform Domain Name Dispute Resolution Policy (“UDRP”),… More
Joshua Jarvis and David Kluft recently presented a webinar offering guidance on social media issue spotting for in-house legal practitioners and executives, with a focus on intellectual property, publicity rights and advertising.
Social media platforms present countless and varied opportunities for companies looking to connect to consumers and clients in real time. But, like so much else in our connected age, these opportunities come with a host of risks ranging from minor public relations blips to unpleasant regulatory run-ins with government agencies,… More
This post first appeared in Law360 as “10 Considerations When Advertising On Social Media,” published on September 21, 2016.
Most modern advertising campaigns include social media components. In fact, it is not uncommon today to see products advertised exclusively on social media. For the most part, the same rules that govern traditional advertising also govern commercial speech on social media.… More
Trademarks, the core legal protection for the names of companies and their products and services, are powerful and potentially timeless intellectual property rights, but are also frequently misunderstood by attorneys and laypersons alike. In-house attorneys in particular are likely to encounter trademark issues on a day-to-day basis,… More
It has been about a year since we published Harry Potter Lawsuits and Where to Find Them, my attempt at a comprehensive review of Harry Potter-related litigation. Why update the article now? Two reasons. First: The long-awaited book version of Harry Potter and the Cursed Child hits the shelves on July 31, 2016.… More
This year marks the fiftieth anniversary of the premiere of the original series of Star Trek, which first aired on NBC in September 1966. On July 22, this milestone will be marked in earnest when Paramount Pictures releases the new film, Star Trek Beyond (which sadly includes the final Chekovian performance by the recently-departed Anton Yelchin).… More
When Is Internet Speech Protected Petitioning Activity? Federal Court Grants Anti-SLAPP Motion In FIRE CIDER Trademark Suit
On May 12, 2016, the District of Massachusetts held that that an online campaign in support of the cancellation of a registered trademark (FIRE CIDER) was protected petitioning activity, even though the campaign was organized and supported by the trademark owner’s competitors. Because the campaign activity was protected, the Court granted the competitors’ anti-SLAPP special motion to dismiss certain claims. The case, Shire City Herbals v.… More
Continuing its trend of scrutinizing claims touting improved cognitive function, the Federal Trade Commission recently announced a settlement with LearningRx Franchise Corp. (“LFC”), the developer and franchisor of a chain of “LearningRx centers” providing one-on-one cognitive training to consumers. The FTC’s settlement with LFC comes in the wake of several other high-profile FTC actions involving cognition claims, including a $2 million settlement with Lumos Labs,… More
First Circuit Affirms FTC Social Media Order: Jerk.com Users Jerked Around By Material Misrepresentations
In Fanning v. Federal Trade Commission, the First Circuit affirmed a summary decision of the Federal Trade Commission (FTC), which found that Jerk LLC, the operator of Jerk.com, materially misrepresented both the source of its content and the nature of its membership benefits, in violation of the Federal Trade Commission Act. However, the Court also curtailed certain monitoring provisions ordered by the FTC,… More
The First Circuit’s “Scungy” Backpage: Copyright And Right Of Publicity Claims Ineffective Against Sex Trafficking
In Doe v. Backpage.com, the First Circuit affirmed the District of Massachusetts in holding that Section 230 of the Communications Decency Act (CDA) shields from civil liability a website used by third parties to facilitate the sex trafficking of underage girls. If you haven’t had a chance to follow the case, there are three basic takeaways: (1) the immunity provided by Section 230 of the CDA is very broad;… More
Just in time for the holiday season, we present our second annual Trademark Year in Wine and Beer. Whether you are planning a holiday party or just having some friends over, you are probably in the market for some liquid holiday cheer. Sure, you could make your beverage purchases based only on taste or price, but instead why not mix it up this year and pick a drink that was the subject of a recent notable trademark dispute?… More
Last month, the Massachusetts Supreme Judicial Court (SJC) held that a Facebook profile may constitute a “threat” within the meaning of the Massachusetts stalking statute. However, a profile that is merely “vaguely ominous or disturbing,” as was the case in Commonwealth v. Walters, is insufficient to support a conviction.
In 2006, Michael Walters and his girlfriend bought a house together in Seekonk,… More