Thank You for 2015 – Best Wishes for 2016

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This is the time of year when many of you are celebrating holidays; spending time with family, friends and loved ones; bidding farewell to 2015; and looking forward to the New Year – 2016. A time when many of us pause to reflect on what has happened in the past year and wonder what the new year will bring. There are people who have touched us and some with whom we’ve gotten closer; some we have missed and many with whom we resolve to try and be better in the new year; and perhaps a few we might like to forget. We pause to remember those who are no longer with us and appreciate that by remembering them, we keep their spirit – all we have learned from them and all they have meant to us – alive. As 2015 comes to an end, we reflect on friendships and relationships, events and experiences. Many will use the opportunity to thank those who have helped us in tough times and those with whom we cherish sharing the good times.

For me it has always been a time to resolve to keep doing the good things I’ve done and to be better about trying to do those things I should have done. This time of year gives me an excuse to say thank you and express appreciation to everyone who has enriched my life. If you are reading this, you are part of my audience – part of the fabric of my professional life and, like the threads of that fabric, you have helped me weave the patterns and textures you read in these digital pages and the thoughts and sensitivities that become imprinted in my mind. I am grateful for your readership and in some cases, your friendship. I am always appreciative when you take a moment to read and perhaps gain some insight, while also being a little entertained.

So let me take this the opportunity to wish each of you, your families, friends, loved ones and yes, even an enemy or two, a beautiful and joyous holiday season and a healthy, happy new year, filled with wonder and magic, health and joy, challenge and opportunity, and prosperity and success. I especially want to thank a few people at Rimon like Kaitlin Southron, Lois Thomson and Rebecca Blaw who make this blog happen. These are the people you don’t see, but I do! They make Legal Bytes come alive. They are always amazing, consistently awesome and unbelievable under pressure. There are insufficient words to express my gratitude and appreciation – especially when they get my email that says “can we please post this ASAP.” Thank you. You make it look easy, you make me look good. I could not do this without you!

Continue reading “Thank You for 2015 – Best Wishes for 2016”

FTC Finally Defines ‘Unfair’

According to the FTC: “The basic consumer protection statute enforced by the Commission is Section 5(a) of the FTC Act, which provides that “unfair or deceptive acts or practices in or affecting commerce … are … declared unlawful.” (15 U.S.C. Sec. 45(a)(1)). Safe Web amended Sec. 5(a) “unfair or deceptive acts or practices” to include such acts or practices involving foreign commerce that cause or are likely to cause reasonably foreseeable injury within the United States or involve material conduct occurring within the United States.”

Given that view and the FTC’s traditionally robust enforcement activities in areas of false, deceptive or misleading advertising, it is not surprising that most advertising, marketing and promotional professionals are familiar with section 5.

However, of lesser fame are pronouncements by the FTC in what is “unfair” competition – another segment of the authority vested in the Federal Trade Commission by section 5 of the FTC Act. This is the lesser-known part of section 5 that gives the FTC the authority to take action when it determines that “unfair methods of competition in or affecting commerce” may be deemed illegal – essentially an antitrust concept.

For the first time, the FTC, this past Thursday (August 13, 2015) released a single page “Statement of Enforcement Principles Regarding ‘Unfair Methods of Competition’ Under Section 5 of the FTC Act“. Perhaps indicative of the challenges and internal discussions among the regulators themselves, the principles are short and, to many, appear to be a re-statement of what has already been the enforcement practices of the FTC in recent years concerning this provision of the Act.

The Commission announced it will follow three basic principles. In short, enforcement will be considered: (1) Using the same underlying principles that guide antitrust law – protection of consumer welfare; (2) if the practice causes, or is likely to cause, harm to competition or the competitive process, without any counter-balancing justification; and (3) if enforcement under the Sherman or Clayton Act is insufficient and independent action is considered necessary.

If you want to know more or have questions, please contact me or any Rimon attorney with whom you work.

Beyond Legal: Social Media Promotions

Yesterday (July 6, 2015), the Social Media Law & Policy Report™ published by Bloomberg BNA posted my article entitled: “Beyond Legal: What You Should Know About Social Media Promotions.”

The article highlights some of the additional considerations advertising and marketing professionals (and their lawyers) need to take into account when conducting sweepstakes, contests and promotional activities on social media platforms.

You can read the article directly at “Beyond Legal: What You Should Know About Social Media Promotions.” , or download a copy for your personal use here: Rosenbaum – Beyond Legal (BNA Reprint).

Do you need to know more about advertising, marketing or promotions operating in the world of social media or on mobile platforms? Our legal team has broad and deep experience in virtually every aspect of advertising and marketing, traditional, digital, virtual on this world or in others, or any of the lawyers with whom you regularly work, at Rimon.

FTC Updates Its FAQs for Endorsement Guides

The Federal Trade Commission has just updated its version of Frequently Asked Questions, or FAQs, that relate to the “Guides Concerning the Use of Endorsements and Testimonials in Advertising” that went into effect December 1, 2009. You can find the updated FTC website page right here “What People Are Asking.”

If you are a loyal Legal Bytes’ reader, you know we have been following this since as early as November 2008, when we posted Endorsements & Testimonials – FTC Broom Proposes Some Sweeping Changes, and numerous updates and informational pieces have graced these pages since then (now when we say “pages,” we mean web pages). You can refer back to any or all of them, or you can check out any you may have missed right here: FTC Testimonial and Endorsement Guides Stimulate Industry Comment (March 2009); a presentation given at the University of Limerick on the subject entitled “Trust Me, I’m a Satisfied Customer: Testimonials & Endorsements in the United States,” which you can download; Ghostwriters: Medical Research or Paid Endorsers (and are they mutually exclusive?) and Rights of Publicity – Wake Up and Smell the Coffee! (both in August 2009); and FTC Releases Updated Endorsement & Testimonial Guidelines and Rimon Analysis of the New FTC Endorsement and Testimonial Guidelines (both in October 2009).

In December 2009, Legal Bytes posted another thoughtful and practical analysis FTC (Revised) Endorsement Guides Go Into Effect, written by John P. Feldman, so you know Rimon is following and keeping up with developments as they occur.

So, if you want to know more or have questions, please do not hesitate to contact me, or any Rimon attorney with whom you regularly work.

An AHAA Moment! The Voice of Hispanic Marketing

On April 27, I had the distinct privilege of presenting a session devoted to the legal implications of social media and mobile technology to the leadership of AHAA, The Voice of Hispanic Marketing at their 2015 Annual Conference.

You can read or download a copy of my presentation, “The Legal Implications of Social Media and Mobile Technology,” which focuses on some traditional advertising basics and some current issues that are “hot” in the brave new world of digital advertising and marketing. Of course, there are so many implications in this dynamic and evolving arena, that no presentation could ever hope to cover them all – or even remain current and timely for very long.

So if you are in the business and need guidance, counsel, and support from a legal team with broad and deep experience in virtually every aspect of advertising and marketing – traditional or digital, anywhere in the Universe – don’t hesitate to contact me, Joe Rosenbaum or any of the lawyers with whom you regularly work at Rimon.

Fraud in Digital Advertising – ANA Report Released

Yesterday (December 9), the Association of National Advertisers (ANA) released a study, “The Bot Baseline: Fraud in Digital Advertising,” exposing the significant fraud present in media buying on the Internet. The losses to the industry for fraudulent, non-human web traffic are billions per year. Doug Wood, Joe Rosenbaum, Todd Mumford and Debra Dermody worked with the ANA on the project, including suggested language for future contracts that addresses non-human web traffic. You can read and download the entire study or the executive summary originally made available to ANA members, entitled “ANA/White Ops Bot Fraud Initiative, Preview for ANA Member Participants” or both.

As always, if you have questions, need help, want guidance or want to know more about Rimon’s advertising, technology and media practice and its resources, experience and capabilities, feel free to contact me, Joe Rosenbaum (joseph.rosenbaum@rimonlaw.com), any of the other lawyers who assisted in the preparation of the report or any lawyer with whom you regularly work at Rimon (rimonlaw.com).

Operation Full Disclosure – The FTC Targets Advertising

Earlier today, the Federal Trade Commission issued a press release indicating that after a review of many national television and print advertisements, warning letters have been sent to a number of companies – including some of the largest advertisers in the United States – noting that they had failed to make adequate disclosures in at least some of their advertising. The initiative, entitled Operation Full Disclosure, is intended to enforce regulations that prohibit advertising that misleads consumers.

The FTC’s targets in this operation are disclosures in fine print, those that were hard to read – even though they contained important information for the consumer. The letters warned advertisers they need to make sure disclosures are clear and conspicuous, and reminded advertisers the disclosures should be close to the claims that are being made. They must not be obscure or disguised with font sizes or colors that make it difficult to read, and on television, they should appear for a long-enough period of time and in a manner that will allow them to actually be read and understood. Consumers should not have to search for them!

Included within each of the FTC letters was a request that each of the advertisers respond back to the FTC with specific actions they individually intended to take regarding their particular advertising, in order to remedy any deficiencies.

You can read the full FTC Press Release and, as always, if you have questions, need help, want guidance, or want to know how best to ensure your advertising and marketing is in compliance with legal and regulatory requirements, just contact me, Joe Rosenbaum, any lawyer in our Advertising, Technology & Media law practice group, or the lawyer with whom you regularly work at Rimon.

…And Now a Word from Your Hedge Fund

This post was written by Frederick Lah.

This past Wednesday (July 10), the SEC voted 4-1 to approve amendments to Rule 506, lifting the 80-year ban on advertising for hedge funds and certain other investments (See, SEC Votes to Ease 80-Year-Old Ban on Private-Investment Ads.) Rimon previously reported these amendments when they were initially proposed in August 2012, and you can read our earlier analysis, SEC Regs Amended To Allow Hedge Funds To Advertise: Potential Data Privacy Implications.

Under the revised Rule 506, hedge funds and other issuers seeking to conduct private offers may now use general solicitation and advertising to offer their securities, provided that: (1) the issuer takes reasonable steps to verify that the purchasers are accredited investors; and (2) all purchases of the securities fall within one of the categories of persons who are accredited investors, or the issuer must reasonably believe that the investors fall within one of the categories at the time of the sale.

To be an accredited investor, the individual’s net worth must exceed $1 million, excluding the value of a primary residence, or the individual’s annual income must exceed $200,000. According to the SEC, the determination of the reasonableness of the steps taken to verify that the investors are accredited is an “objective assessment” by an issuer. An issuer is required to consider the facts and circumstances of each investor and the transaction. The final rule provides a non-exhaustive list of methods that an issuer may employ for verification.

As noted in our previous analysis, it is unlikely we’ll see hedge funds competing with large consumer brands for prime advertising space. Instead, given the target audience, we’ll likely see more tailored efforts, such as email marketing campaigns, direct phone marketing, and targeted online advertising. We are also likely to see new strategies from issuers such as speaking about funds in public and posting details on websites (which may represent quite a change considering many issuers don’t even have websites). As issuers enter into the world of marketing, they will also have to deal with the reality that the SEC is not the only regulatory agency on their radar; these issuers will need to make sure that they’re not engaging in unfair or deceptive marketing practices and drawing the ire (and an investigation or enforcement action) of the FTC.

The amendments become effective 60 days after publication in the Federal Register. For more information on this issue, please contact Frederick H. Lah, the author, or Joseph I. Rosenbaum, editor and publisher of Legal Bytes.

What You Don’t Know Can Hurt You

Multiple Choice Question: What do the following have in common:

“Privacy & Data Protection: Distinctions Between Surveillance and Secrecy”

“Ethics, Process, Privilege, Discovery and Work Product in the Digital Age”

“When Worlds Collide: Old Ethics and New Media”

“Outsourcing: The Law & Technology”

“The Changing Legal Landscape: Evolution or Revolution”

“Growing Your Business Internationally – What to Know Before You Go”

“Social Media, Mobile Marketing, Clouds and Crowds: (modules)

  • Advertising & Marketing in a Digital World
  • Media & Entertainment: Digital Rights and Wrongs
  • Financial Services, Payments & E-Commerce
  • Online Gaming, Gambling & Virtual Worlds
  • Apps & M-Commerce
  • Context & Geo-Marketing: Wi-Fi, Bluetooth, SMS, RFID, QR Codes & Augmented Reality
  • Operations & Performance, Security, Compliance and Interoperability
  • Wired & Wireless: Sweepstakes, Contests, Product Placement & Branded Entertainment
  • Anti-Social? Communication & Public Relations for Companies, Employees & Investors
  • Behavioral Advertising, Endorsements, Blogs, Buzz, Viral, Street Teams & Word of Mouth
  • Labor & Employment Policies in a Networked Age: The Good, The Bad & The Ugly
  • Crowd Sourcing, Crowd Funding, Crowd Investing: Today & Tomorrow

“Privacy, Data Protection & Globalizing Technology: Digital Commerce Brings Legal Challenges”

“Comparative Advertising Issues: Multinational Brands; Global Challenges”

“Direct to Consumer: Legal Challenges in the Digital Marketplace”

“Out of Control? Challenges to Privacy & Security in a Big Data World.”

 

Answers: (a) Seminars & Presentations Given; (b) Seminars & Presentations Available; (c) Targeted at Lawyers; (d) Targeted at Commercial and Business Management; (e) Relevant to Small-to-Medium Size Business; (f) Relevant to Multinational, International & Global Companies; (g) None of the Above; or (Y) All of the Above.

If you guessed (Y), you are correct. Let us know if any of these, a combination of these or a customized version of these or any other presentations might be right for you. Hey, you never know, but what you don’t know, can hurt you. For more information, contact me, Joe Rosenbaum, or the Rimon attorney with whom you regularly work.

A New Twist to Chubby Checker – Oh No, Not an App for That!

Chubby Checker, whose real name is Ernest Evans, is suing Hewlett Packard for trademark infringement. Chubby Checker, an iconic music entertainer, rose to fame when his song “The Twist” first reached No. 1 on the charts in 1960 and his appearances on the “Ed Sullivan Show” and “American Bandstand” helped spawn a national, if not international, dance frenzy. His 2008 song “Knock Down the Walls” reached the top of the dance charts and sparked a brief comeback for the music legend.

Ernest Evans Corporation, one of Mr. Checker’s companies, was originally granted trademark rights for the use of his name in connection with musical performances. Later, The Last Twist Inc., another of his companies, was granted trademark rights for “Chubby Checker’s” in connection with food products, based on the release of a line of snack foods.

The mobile “app” named “The Chubby Checker” – no, we couldn’t possibly make this up – ostensibly enabled users who downloaded it to calculate the size of a male penis based on the individual’s shoe size. The development shop named Magic Apps, now non-existent, had touted the international appeal of the app, noting “The Chubby Checker” allows calculations based on U.S., UK and European shoe sizes.

Lawyers for Mr. Checker had sent HP a cease-and-desist letter last September and apparently the app was removed from all HP or Palm-hosted websites later that month. In the lawsuit filed in the U.S. District Court for the Southern District of Florida, lawyers for Mr. Checker, now 71 years old, claim that “irreparable damage and harm” has been done to the entertainer’s name and reputation, are seeking an injunction, and are asserting claims of millions of dollars in damages arising from “The Chubby Checker” app that Hewlett Packard Co. made available on Palm mobile devices starting in 2006. You may recall that HP acquired Palm in 2010, and a year later opted to shutter the production of Palm hardware, although it continued to provide technical support to existing Palm users.

The suit alleges that purchasers of the app, as well as anyone simply browsing the webpage, had been misled into believing that Chubby Checker had endorsed the app, and that the use of his name would confuse users who might reasonably conclude the singer had some association with the app bearing his name.

The lawsuit alleges that the defendants made millions of dollars exploiting the name of one of the greatest musical entertainers of our time, and claims the “Defendants’ use of the name ‘Chubby Checker’ in its app is likely to associate the plaintiffs’ marks with the obscene, sexual connotation and images evoked by defendants’ app ‘The Chubby Checker.’” You can read the filing in its entirety right here at Evans, et al. v. Hewlett Packard Company, et al., Case 2:13-cv-14066-JEM.

The Advertising, Technology & Media Law Group at Rimon has lawyers with decades of experience in working with advertisers and agencies, marketing and promotional companies, online, mobile, and traditional, handling matters involving celebrity endorsements – good, bad and sometimes ugly. Let us know if you need us. Call me, Joe Rosenbaum, or any of the Rimon lawyers with whom you regularly work. We are happy to help.