Insights at the intersection of digital and mobile technology, innovation and the law
Just a quick reminder that next week, Rimon Law is sponsoring a complimentary series of CLE sessions.
Mine highlighted above is just one of a number of important and valuable sessions.
Find out more and follow the links to register, through my prior posting 2019 Rimon Law CLE Webinar Series.
Enrollment for the 2019 Rimon Law CLE Webinar Series being held in January is now open, so don’t wait too long to register!
Don’t miss the chance to register, to learn and to earn CLE credits.
This January (2019) we will be offering the following programs:
To get dates, times and more information and to register for any or all of them go to 2019 Rimon Law CLE Webinar Series.
Earlier this week, ClickZ reported that the improper use of the Digital Advertising Alliance’s behavioral icon
is threatening to dilute the self-regulatory effectiveness of its campaign to educate consumers on the risks of online behavioral advertising, and enable them to make an informed judgment in seeking to control the use of their browsing behavior across multiple websites. Legal Bytes has previously reported the initial development and launch, as well as the growing acceptance of the industry’s self-regulatory efforts (just search us for “behavioral advertising” or follow the links through any of our prior posts – e.g., Self-Regulatory Ad Industry Effort Continues to Drive Forward). While the icon has gained wide acceptance as part of the advertising industry’s self-regulatory initiative (See Advertising Industry Collaboration Releases Self-Regulatory Online Behavioral Advertising Principles), using it inappropriately or inaccurately may cause consumers to be more confused, rather than educated.
You might be tempted to argue that if advertising that does not involve behavioral information nonetheless includes the DAA icon, what’s the harm? However, if the objective is to educate consumers about the distinctions in how their information is collected and used by advertisers, agencies, network publishers, browser publishers and others in the interactive ecosystem, confusion fuels the concerns already raised by consumer advocacy groups, regulators and lawmakers alike – and that’s counterproductive.
The good news is that the industry campaign to stimulate adoption of the self-regulatory guidelines and the inclusion of the icon in relevant advertising is gaining momentum – a sign the industry can and will police and regulate itself. Innocent mistakes in the name of compliance are certainly better than abuse or ignorance, so let’s not be too quick to throw stones. That said, as consumers increasingly see the icon and begin to appreciate, and take advantage of, the self-regulatory efforts, it behooves the industry to do a better job of making sure the educational component is consistent and not ICONfusing!
As always, if you need more information about the advertising industry’s self-regulatory initiative, advice regarding compliance, or legal help in understanding the dynamic and ever-changing environment of online and mobile interactive advertising, marketing and privacy, call me, Joseph I. (“Joe”) Rosenbaum, or any of the Rimon attorneys with whom you regularly work – our lawyers deal with these issues every day.
In a turbo boost for the advertising industry’s self-regulatory initiative (See Advertising Industry Collaboration Releases Self-Regulatory Online Behavioral Advertising Principles), Chrysler has picked Evidon as its exclusive provider for online behavioral advertising compliance services. Both in advertising and through website notifications, Evidon will power the delivery and display of the Ad Choices icon on Chrysler advertising online, and the corresponding disclosures to consumers about how their online behavior is collected and information used – and allowing those consumers to opt-out. Of the U.S. automakers, Chrysler is the first to use the system across its brands; and if a consumer prefers not to allow Chrysler to use behavioral data, he or she can simply click on the blue icon, which opens a pop-up browser window that explains how the advertising is matched with that consumer’s browsing activity and other information—not only to inform the consumer, but also to allow the consumer to opt-out of future behavioral advertising originating from Chrysler ads. We understand that each of the individual brand websites within the Chrysler group will also have notices that give individuals comparable information, and notices regarding how they can opt out as well.
As always, if you need more information about the advertising industry’s self-regulatory initiative; advice regarding compliance; or legal help in understanding the dynamic, ever-changing environment for advertising, marketing and privacy, call me, Joseph I. (“Joe”) Rosenbaum, or any of the Rimon attorneys with whom you regularly work. Our lawyers deal with these issues every day.
On April 5, 2011, the International Law Office published a customized version of the March 14, 2011 blog on Legal Bytes, Twitter Settles with FTC – Gets 20 Years’ Probation! You can read it online or download your own copy of the ILO posting here: ILO Posts Twitter Settlement news.
Sens. John Kerry (D-Mass.) and John McCain (R–Ariz.) have introduced a bill in Congress to legislatively enable a statutory bill of rights for consumers with respect to commercial privacy. You can read the full text of the Commercial Privacy Bill of Rights Act of 2011 (PDF), and Rimon will have a more complete analysis for your reading enjoyment soon; but the bill clearly intends to require that as little data about an individual is collected as possible, and give individuals a right to know how their information is being used. At first reading, the bill does not provide a private right of action, but does contemplate a self-regulatory program, perhaps a nod to the industry initiative that is highlighted in a recent Legal Bytes posting “OBA Self-Regulatory Initiative Gets Boost from Yahoo! & Google.” You can search for privacy, behavioral advertising and/or self-regulatory on our site and you will find more about this on the Legal Bytes blog.
It may be too early to tell just how much faith Congress has in the industry initiative. That said, it would seem somewhat foolish – given that the FTC and many Congressional leaders have argued for and applauded industry self-regulatory measures – not to afford an industry-sponsored, dynamic, self-regulatory program, a chance to work. As we’ve seen so many times before, along with the technology, consumers’ expectations of privacy, their tastes, commercial needs and sensitivities often change rapidly.
As always, if you need guidance for your advertising and marketing efforts, or privacy and data-protection counsel from lawyers who have experience and resources aligned to deal with these issues every day, feel free to call me, Joseph I. (“Joe”) Rosenbaum, or any of the Rimon attorneys with whom you regularly work.
Knock Knock. Who’s there? Andover. Andover who? Andover those records Pandora.
So Pandora Media, Inc., the company that brings us the popular Pandora® Internet Radio, has reportedly received a subpoena from a federal grand jury looking into the practice of information-sharing involving smart phone applications. Pandora did indicate, however, it had been advised it was not a target of the grand jury investigation, and that it believed the legal request for the production of information had been served on an "industry-wide basis" to many other smart phone application publishers. Not much else is known about either the specific subpoenas (or is the correct Latin, "subpoenae"?) or the nature or focus of the federal investigation; but guessing that it relates to the sharing of information about location-based target-marketing practices, and the disclosure of information by and among ad publishing networks, can’t be far from the target.
The Advertising Technology & Media law practice group, in conjunction with our global regulatory practice and litigators when we need them, has experience in dealing with such subpoenae (or is the correct English "subpoenas"?). Think about knowing how to respond before you get served – with a subpoena or on a platter. OK. I’m still in the April Fool’s Day spirit. What can I say?
Back in 2009, Legal Bytes reported that a coalition of the major players in the online advertising industry had gotten together and issued self-regulatory principles concerning online behavioral advertising (Advertising Industry Collaboration Releases Self-Regulatory Online Behavioral Advertising Principles). These principles were and remain intended to create an industry self-policing mechanism that provides, among other things, discipline and disclosures to consumers concerning the use of personal information.
Amidst much activity and debate – the good, the bad and the ugly – the industry has moved forward, creating a Digital Advertising Alliance (“DAA”) (and website), and enlisting the aid of the Council of Better Business Bureaus to develop and implement an enforcement process, much like the process that has worked quite successfully in traditional advertising for well more than 30 years! By the way, for the record, I refer to online behavioral advertising (OBA) as “digital behavioral advertising” or “DBA,” since excluding mobile and wireless would be a mistake, and “online” conjures up images of “wired.”
In a major show of support for the self-regulatory initiative, both Google and Yahoo! have announced they will begin using the “forward i” icon (shown below), promulgated by the DAA for its behavioral advertising.
Aside from the obvious boost to the industry’s self-regulatory efforts, the uniformity will help lessen the likelihood of consumer confusions regarding industry practices across the web. The DAA icon will also serve as a live link, taking users to user-based tools that a consumer can use to modify the behavioral and identified interest categories advertisers use to serve targeted advertising. The tools would also enable a consumer to opt out of receiving such advertising. Yahoo! actually will prevent partner sites from collecting consumer data if a consumer opts out, while Google will disable interest-based cookies and remove demographic and interest-related information from its Chrome browser when a consumer opts out.
Neither the industry’s self-regulatory program, nor the consumer tools available through the DAA’s program, were ever intended to stop data tracking (as you probably know, “do not track” is getting lots of play in Congress and the media lately). Microsoft and Mozilla have separately introduced modifications to their IE and Firefox browsers (i.e., HTTP header settings) that allow consumers to alter the settings and alert advertisers that they have opted out of tracking; although the settings do not block tracking per se, they will simply serve as notice to the companies that may be tracking user data of that consumer’s preference.
As always, if you need guidance for your advertising and marketing efforts or privacy and data protection from legal representatives who deal with these issues every day, feel free to call me, Joseph I. (“Joe”) Rosenbaum, or any of the Rimon attorneys with whom you regularly work.
The Adword Lawsuit
Now D (Defendant) buys competitor’s words from a search engine, you see.
What words do they buy? Just brands that are popular – with you and with me.
They buy words I might search for when I am looking for thee.
When we search for P’s (Plaintiff) product, they also find me.
D’s product and brand pops up with such glee; a sponsored link for consumers to see.
Now P gets really mad, call the lawyers, they do,
P’s marketers scream loudly, "Go sue, yes, let’s sue."
So do what they might and do what they may,
The lawyers do sue, in court we shall have our day!
But wait just a moment, says the court to party P,
In order to win, two things prove for me,
Did D "use the mark in commerce" for all the world to see
And can you prove that buyers, from deception and confusion are free?
Well maybe I can and maybe I can’t, says P not quite funny.
But Your Honor, you do know I’ve invested huge sums of money.
With branding and ads placed in time and in space,
How can D be permitted to stand in my place? If a "mark" I invest in, an intellectual property right,
Surely you will protect my investment before calling it a night!
Not so, sayeth the court and much to Plaintiff’s fright.
‘Tis only deception we courts should set right.
The mark is intellectual and property we know,
But in "adword" competition, deception is as far as we go.
So P left the stage, bloodied but resolved to fight another day,
But so far and at this point, the Ninth Circuit says "no way."
The English Translation
Consider the case of Network Automation, Inc. v. Advanced Systems Concepts [No. 10-55840 (9th Cir. 3/8/11)]. Network Automation sells scheduling and management software under the brand name AutoMate. Its competitor, Advanced Systems Concepts, has a product called ActiveBatch. Now in 2009, Network Automation purchased keywords, including "ActiveBatch," from Google and Bing. When consumers searched for "ActiveBatch," the displayed results carried a sponsored link to Network Automation’s website. Naturally, Advanced Systems demanded Network Automation stop using its name as an advertising keyword, claiming the use infringed its intellectual property rights. Network Automation refused and Advanced Systems sued.
In order to prevail, traditional trademark law says Advanced Systems must show that the mark was "used in commerce" and that consumers of these competitive products are likely to be confused. I won’t bore you with the legal machinations leading up the ruling last week, but first the Ninth Circuit clearly joins the Second Circuit in stating the purchase of adwords is "use in commerce" for purposes of trademark law (the Second Circuit made a strong statement to that effect in Rescuecom v. Google Inc., 562 F.3d 123, 127 (2d Cir. 2009)). But what about the likelihood of confusion?
Here, Advanced Systems failed to convince the court that a "sophisticated" Internet consumer (the target consumer for this product) was likely to be confused by the keyword advertising strategy. "A sophisticated consumer of business software exercising a high degree of care is more likely to understand the mechanics of Internet search engines and the nature of sponsored links, whereas an un-savvy consumer exercising less care is more likely to be confused," the ruling states.
While intellectual property lawyers will themselves review the Ninth Circuit’s distinction between the Sleekraft factors used to determine likelihood of confusion (named from AMF, Inc. v. Sleekraft Boats, 599 F.2d 341 (9th Cir. 1979)) and those used in the Brookfield case (Brookfield Communications, Inc. v. West Coast Entertainment, 174 F.3d 1036 (9th Cir. 1999)), you should know the Ninth Circuit felt the right factors to consider in competitive adword cases are: strength of the mark, evidence of actual confusion, type of goods, the degree of care likely to be exercised by the purchaser, and the appearance of the ads and surrounding context on the screen displaying the results.
But wait a minute. If the brand owner has invested significant time and money building brand recognition and a strong mark, shouldn’t it be entitled to protection? Put another way, if a trademark is intellectual PROPERTY, don’t I have the right to protect my asset and not give the alleged "infringer" a free ride on my investment? Well the Ninth Circuit seems to be saying "no, you don’t."
The court reasoned that trademark law focuses on protecting the consumer (and correspondingly the trademark owner) from the likelihood of confusion. Even though, over the past decade (inspired by cases like Brookfield), companies sought to emphasize the "property" aspect of their marks – protecting their investment and asset value – this court feels that is not the right approach. With this ruling, the Ninth Circuit appears to dismiss the property or asset "value" and investment argument, and makes a fairly clear statement that the rationale for protecting trademarks and the basis of permissible legal action still remains consumer deception and confusion. "Did D ‘use the mark in commerce’ for all the world to see, and can you prove that buyers, from deception and confusion are free."
For these judicial combatants, it means Network Automation can keep advertising on search engines using keywords that include the name of Advanced Systems and its products. Want to read the case for yourself? You can download your own personal copy and read the entire Ninth Circuit decision in this case right here: Network Automation, Inc. v. Advanced Systems Concepts. Need help? Contact me or the Rimon attorney with whom you regularly work.
On Friday, March 11, 2011, the Federal Trade Commission issued a press release announcing that, by a 5-0 vote, the Commissioners had approved a settlement with Twitter, stemming from charges that the social media and social networking site had deceived consumers by failing to protect personal information and potentially compromising their privacy. Last June, the FTC had charged Twitter with lapses in data security sufficiently serious that hackers were able to compromise administrative control, including both non-public user information and consumers’ private tweets. Hackers could send out fraudulent phony or spoofed tweets from virtually any user’s account. The complaint originally filed against Twitter alleged that there were at least two instances where hackers were able to get control in early 2009, although it is possible there were other times as well.
Twitter’s privacy settings ostensibly permit a user to identify tweets as private, and the FTC has consistently maintained that when a company posts a privacy statement or policy, aside from seeking to form a binding agreement between company and consumer regarding use of the site and the service, it also can make claims, announcing (i.e., advertising) the quality, integrity, reliability and security (among other things) of the features, functions and operations of the site that the public and each consumer using the service can rely upon. As the FTC noted in its press release, Twitter’s privacy policy says, "Twitter is very concerned about safeguarding the confidentiality of your personally identifiable information. We employ administrative, physical, and electronic measures designed to protect your information from unauthorized access." From a regulatory perspective, this statement is viewed as constituting a ‘claim’ relating to the data protection measures Twitter utilizes and how the company treats customer information and activity.
Although a settlement finalized in a consent agreement doesn’t amount to an admission of liability or a violation of any law or regulation, a final consent order does have the force of law against the company going forward. In this case, Twitter has agreed that for the next 20 years it will (a) not mislead consumers about the extent to which it protects the security, privacy and confidentiality of nonpublic consumer information, (b) respect and honor consumers’ privacy choices, and (c) not mislead consumers about what it does or how safe the mechanisms are that are designed to prevent unauthorized access. Twitter also agreed that every two years for the next ten years, it will have an independent auditor review and evaluate Twitter’s information security program.
Need more information about how the FTC views terms of use, privacy statements and the ‘advertising’ claims that arise in social media? Contact me or the Rimon attorney with whom you regularly work.