WWW.IMaySoonBeLegal BytesWithoutAnyDotCom

Move over “Dot Com” and other “dots” you have come to know and adore. Soon you may be able to purchase a top-level domain corresponding to almost any word or phrase, including your name or brand. ICANN, which administers domain names, is accepting comments on its new Draft Applicant Guidebook; but if you really want expert guidance and advice on what this means to you and why you should prepare yourself for the changes, read our bulletin Branded Dot Com Internet Domain Names, and then contact John Hines, our resident authority Advertising Technology & Media Law partner. Dot’s nice!

Touchdown!

The NFL Players Association was recently ordered to pay $7 million in compensatory damages and $21 million in punitive damages to retired football players who claimed they were excluded from lucrative marketing deals. The class action claimed the “Madden” interactive football games, and deals involving sports card and sponsorships, intentionally scrambled images of retired players to avoid paying royalties. Active players received royalties for their images, but retired players’ images were scrambled. Now normally that might be a key question of fact to be determined by a jury. Unfortunately, there was a smoking gun! Someone at NFLPA wrote to Electronic Arts, publisher of the popular Madden games, explaining that unless they scrambled the retired players’ images, payments would be required. Oops.

Endorsements & Testimonials – FTC Broom Proposes Some Sweeping Changes

The FTC is seeking comments to its proposed revisions to the Guides Concerning the Use of Endorsements and Testimonials in Advertising, last updated in 1980, and which define endorsements and testimonials: advertising messages reflecting opinions, beliefs, findings or experiences of someone other than the advertiser, and which consumers are likely to believe. The revisions propose changes to the way the FTC will interpret (and enforce) the Act:

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Gift Cards (The Gift That May Stop Giving) *

Attention holiday shoppers. Not sure what to buy Aunt Matilda or cousin George? A gift card allows them to buy whatever they like? Maybe. Large retailers such as Sharper Image, Bombay Company and Linens ‘N Things have filed for bankruptcy or gone out of business, leaving behind millions of dollars in unused gift cards. In bankruptcy, money left on a gift card is treated as a debt, which the bankruptcy court can decide if it is to be repaid, and how. If the retailer stays in business, the court may allow it to continue to honor its cards, but even then consumers may not get the full value. Sharper Image, for example, was allowed to continue accepting gift cards, but only if the cardholder spent twice the value of the card in a single transaction. Bombay Company was allowed to pay its gift-card holders 25 cents on the dollar. If the retailer closes its doors, it is possible the consumer’s only recourse would be to file a claim and stand in line with the other unsecured creditors.

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Gift Card Laws

Want to know why gift card laws are such a maze? Check out the March 2008 issue of Credit Union Business (Vol. 3, Issue 3), in which nationally published freelance writer and attorney Ursula Furi-Perry reports on her interview with Legal Bytes editor, Joe Rosenbaum, in a feature article, “Plastic Law: What Executives Must Know.” Want to know more about what matters? Head to
rimonlaw.com or email me.

Useless But Compelling Facts – October 2008 Answer

Last month we asked you to tell us a city name found on every continent? I confess this was a trick question – if you include Antarctica, the answer is “none.” Unfair? Probably. But three people gave us the correct answer, all within seconds of each other and noted the answer that would have been right if I had excluded Antarctica. Kudos to long-time readers and prior winners John Falco at MTV Networks and Randy Henrick at DealerTrack, and to newcomer Karen Baumann at Team Detroit, JWT, Y&R, Wunderman, Ogilvy, GroupM. Each correctly told us the city of Roma (not Rome) can be found on every continent except Antarctica.

…And Now A Word From the FCC

The FCC is looking into regulations regarding disclosures for product placements and has been soliciting comments on its proposed changes. Should feature films produced for theatrical release and then aired on TV, and which have traditionally enjoyed an exemption from the sponsorship identification required of TV programming—have that exemption removed? should product placements be identified when the product is shown on screen? Should embedded advertising be completely prohibited in children’s programming? Increasing product placement and integration into programming has stimulated concern among consumer advocacy groups and Congressional legislators that the rules, many of which are decades old, do not address the new wave of advertising and promotion that has arisen as DVR technology and marketing has migrated away from the traditional “30-second spot.”

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The War on Privacy Opens a New Front

In the aftermath of many well publicized data breaches, in the past few years, more than 40 U.S. states have enacted data breach disclosure laws—“identity theft” statutes—which, among other things, require consumers to be notified when personally identifiable information is or may have been compromised in a database. But recent reports citing ineffectiveness of such legislation (e.g., Carnegie Mellon University researchers found notification laws only reduce identity theft by around 2 percent) and a growing sense that notification laws don’t prevent the problem, have caused some states to examine other approaches. At least two states, Nevada and Massachusetts, have enacted different legislation aimed at prevention, and Washington and Michigan are actively considering new measures.

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