Brian D. Fergemann, Partner

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April 1, 2013 Newsletter Privacy Law News
Winston & Strawn's Privacy Law News provides summaries and tips on recent legal developments in the areas of Web site, workplace, health care and financial privacy, data security, software and technology, and privacy issues that arise in interactive company-to-consumer communications.
February 5, 2013 Newsletter Privacy Law News
Winston & Strawn's Privacy Law News provides summaries and tips on recent legal developments in the areas of Web site, workplace, health care and financial privacy, data security, software and technology, and privacy issues that arise in interactive company-to-consumer communications.
December 18, 2012 Newsletter Privacy Law News
Winston & Strawn's Privacy Law News provides summaries and tips on recent legal developments in the areas of Web site, workplace, health care and financial privacy, data security, software and technology, and privacy issues that arise in interactive company-to-consumer communications.
October 9, 2012 Special Alert FTC Updates Green Marketing Guides
Firm Authors: Brian D. Fergemann, Stephen E. Wieker
September 27, 2012 Newsletter Privacy Law News
Winston & Strawn's Privacy Law News provides summaries and tips on recent legal developments in the areas of Web site, workplace, health care and financial privacy, data security, software and technology, and privacy issues that arise in interactive company-to-consumer communications.
August 21, 2012 Newsletter Privacy Law News
Winston & Strawn's Privacy Law News provides summaries and tips on recent legal developments in the areas of Web site, workplace, health care and financial privacy, data security, software and technology, and privacy issues that arise in interactive company-to-consumer communications.
June 2012 Newsletter Advertising/Promotions Law News
Winston & Strawn's Advertising/Promotions Law News covers topics of interest to the firm's advertising and consumer product company clients in the areas of advertising challenges and litigation, sweepstakes and promotions, privacy and security, and other relevant legal issues.
June 27, 2012 Newsletter Privacy Law News
Winston & Strawn's Privacy Law News provides summaries and tips on recent legal developments in the areas of Web site, workplace, health care and financial privacy, data security, software and technology, and privacy issues that arise in interactive company-to-consumer communications.
March 15, 2012 Newsletter Privacy and Technology Bulletin
Winston & Strawn's quarterly Privacy and Technology Bulletin provides summaries and tips on recent legal developments in the areas of Web site, workplace, health care and financial privacy, data security, software and technology, and privacy issues that arise in interactive company-to-consumer communications.
January 30, 2012 Newsletter Advertising/Promotions Law News
Winston & Strawn's Advertising/Promotions Law News covers topics of interest to the firm's advertising and consumer product company clients in the areas of advertising challenges and litigation, sweepstakes and promotions, privacy and security, and other relevant legal issues.
September 28, 2011 Newsletter Privacy and Technology Bulletin
Winston & Strawn's quarterly Privacy and Technology Bulletin provides summaries and tips on recent legal developments in the areas of Web site, workplace, health care and financial privacy, data security, software and technology, and privacy issues that arise in interactive company-to-consumer communications.
September 2011 Newsletter Advertising/Promotions Law News
Winston & Strawn's Advertising/Promotions Law News covers topics of interest to the firm's advertising and consumer product company clients in the areas of advertising challenges and litigation, sweepstakes and promotions, privacy and security, and other relevant legal issues.
August 12, 2011 Briefing FTC to Review its Guidance and Regulations of Online, “New Media” Advertising
Firm Authors: Anthony E. DiResta
Without a doubt, today’s world of communications is changing daily. Consumers, advertisers, businesses and brands, and governmental regulators are witnessing an explosion of “social media platforms” and emerging technologies.
June 30, 2011 Newsletter Privacy and Technology Bulletin
Winston & Strawn's quarterly Privacy and Technology Bulletin provides summaries and tips on recent legal developments in the areas of Web site, workplace, health care and financial privacy, data security, software and technology, and privacy issues that arise in interactive company-to-consumer communications.
June 2011 Newsletter Advertising/Promotions Law News
Winston & Strawn's Advertising/Promotions Law News covers topics of interest to the firm's advertising and consumer product company clients in the areas of advertising challenges and litigation, sweepstakes and promotions, privacy and security, and other relevant legal issues.
March 31, 2011 Newsletter Privacy and Technology Bulletin
Winston & Strawn's quarterly Privacy and Technology Bulletin provides summaries and tips on recent legal developments in the areas of Web site, workplace, health care and financial privacy, data security, software and technology, and privacy issues that arise in interactive company-to-consumer communications.
January 2011 Article Which Rule to Follow? New Challenges for Advertisers
Firm Authors: Brian D. Fergemann, Marc H. Trachtenberg
December 23, 2010 Newsletter Privacy and Technology Bulletin
Winston & Strawn's quarterly Privacy and Technology Bulletin provides summaries and tips on recent legal developments in the areas of Web site, workplace, health care and financial privacy, data security, software and technology, and privacy issues that arise in interactive company-to-consumer communications.
December 2010 Newsletter Advertising/Promotions Law News
Winston & Strawn's Advertising/Promotions Law News covers topics of interest to the firm's advertising and consumer product company clients in the areas of advertising challenges and litigation, sweepstakes and promotions, privacy and security, and other relevant legal issues.
November 2010 Newsletter Advertising/Promotions Law News
Winston & Strawn's Advertising/Promotions Law News covers topics of interest to the firm's advertising and consumer product company clients in the areas of advertising challenges and litigation, sweepstakes and promotions, privacy and security, and other relevant legal issues.
August 31, 2010 Newsletter Advertising/Promotions Law News
Winston & Strawn's Advertising/Promotions Law News covers topics of interest to the firm's advertising and consumer product company clients in the areas of advertising challenges and litigation, sweepstakes and promotions, privacy and security, and other relevant legal issues.
August 4, 2010 Newsletter Advertising/Promotions Law News
Winston & Strawn's Advertising/Promotions Law News covers topics of interest to the firm's advertising and consumer product company clients in the areas of advertising challenges and litigation, sweepstakes and promotions, privacy and security, and other relevant legal issues.
June 24, 2010 Newsletter Advertising/Promotions Law News
Winston & Strawn's Advertising/Promotions Law News covers topics of interest to the firm's advertising and consumer product company clients in the areas of advertising challenges and litigation, sweepstakes and promotions, privacy and security, and other relevant legal issues.
June 21, 2010 Newsletter Privacy and Technology Bulletin
Winston & Strawn's quarterly Privacy and Technology Bulletin provides summaries and tips on recent legal developments in the areas of Web site, workplace, health care and financial privacy, data security, software and technology, and privacy issues that arise in interactive company-to-consumer communications.
May 7, 2010 Newsletter Advertising/Promotions Law News
Winston & Strawn's Advertising/Promotions Law News covers topics of interest to the firm's advertising and consumer product company clients in the areas of advertising challenges and litigation, sweepstakes and promotions, privacy and security, and other relevant legal issues.
March 16, 2010 Newsletter Privacy and Technology Bulletin
Winston & Strawn's quarterly Privacy and Technology Bulletin provides summaries and tips on recent legal developments in the areas of Web site, workplace, health care and financial privacy, data security, software and technology, and privacy issues that arise in interactive company-to-consumer communications.
February 4, 2010 Newsletter Advertising/Promotions Law News
Winston & Strawn's Advertising/Promotions Law News covers topics of interest to the firm's advertising and consumer product company clients in the areas of advertising challenges and litigation, sweepstakes and promotions, privacy and security, and other relevant legal issues.
December 18, 2009 Newsletter Privacy and Technology Bulletin
Winston & Strawn's quarterly Privacy and Technology Bulletin provides summaries and tips on recent legal developments in the areas of Web site, workplace, health care and financial privacy, data security, software and technology, and privacy issues that arise in interactive company-to-consumer communications.
November 30, 2009 Newsletter Advertising/Promotions Law News
Winston & Strawn's Advertising/Promotions Law News covers topics of interest to the firm's advertising and consumer product company clients in the areas of advertising challenges and litigation, sweepstakes and promotions, privacy and security, and other relevant legal issues.
November 23, 2009 Briefing Facebook’s Claim of Ownership of Posted Content Does Not Destroy CDA Immunity
The New York Supreme Court recently granted Facebook, Inc.’s motion to dismiss a pending defamation action because the court concluded that Facebook was immune from liability under the Communications Decency Act as an interactive computer service.
November 20, 2009 Briefing George Clinton’s Use of “Dog” and Panting in Song is Copyrightable Subject Matter
Bridgeport Music, Inc., owner of the publishing rights to George Clinton’s best-known work, “Atomic Dog,” sued UMG Recordings Inc. for copyright infringement.
November 20, 2009 Briefing Court Finds No Copyright Infringement Where Works Lack Similarity in Total Concept and Feel
A children's book was found not to infringe on another work for children. The court found that the total concept and feel of the two works were not substantially similar, and only the non-copyrightable elements of the works were shared.
November 17, 2009 Briefing FTC To Hold First in Series of Privacy Roundtables
The Federal Trade Commission will hold on December 7 the first in a series of roundtables on privacy issues.
November 16, 2009 Briefing Social Networking Web site to Pay $750,000 for Sending Unsolicited and Deceptive Promotional Emails
The New York and Texas State attorneys general entered into settlement agreements with social networking Web site Tagged.com, after the attorneys general concluded that the Web site misappropriated its members’ contact lists and sent out millions of unsolicited and deceptive promotional emails to members’ contacts.
November 13, 2009 Briefing U.K. Law on Prize Competitions Receives Clarification
Under the Gambling Act 2005 the organisers of prize competitions in the United Kingdom must be careful to ensure that their promotions do not constitute an illegal lottery. 
November 13, 2009 Briefing Mattress.com Ruled Generic
The Federal Circuit Court of Appeals ruled on Friday that Mattress.com is generic for online retail sales of mattresses, beds, and bedding.
November 11, 2009 Briefing Creating Categories Does Not Destroy CDA Immunity
Thomas Dart, a sheriff in Cook County, Illinois, filed suit against online classified advertiser Craigslist, Inc. in the U.S. District Court for the Northern District of Illinois for creating a public nuisance by facilitating prostitution.
November 11, 2009 Briefing Photographer Retains Rights in Photos Created for Company’s Advertising and Promotional Materials
Learning Curve International is an authorized licensee of the popular “Thomas & Friends” train characters.
November 9, 2009 Briefing Facebook Issues New Policy Regarding Conducting Sweepstakes and Contests
Facebook recently released a revised policy for administering sweepstakes and contests through Facebook.
October 2009 Newsletter Advertising/Promotions Law News
Winston & Strawn's Advertising/Promotions Law News covers topics of interest to the firm's advertising and consumer product company clients in the areas of advertising challenges and litigation, sweepstakes and promotions, privacy and security, and other relevant legal issues.
October 29, 2009 Briefing Refunds Issued for Baby Einstein Purchases
According to recent press reports, Walt Disney Studios Home Entertainment is offering consumers who purchased Baby Einstein videos between June 2004 and September 2009 a refund of $15.99, or else the option to exchange the video for another product.
October 28, 2009 Briefing Puerto Rico Revises Sweepstakes Regulations
On October 27, 2009, Puerto Rico’s Department of Consumer Affairs released new regulations governing the promotion of sweepstakes in Puerto Rico.
October 27, 2009 Briefing FTC Settles With Company Over Biodegradable Claims Since Product Not Normally Composted
The Federal Trade Commission announced a settlement October 22 with a company that makes clothing and other textiles from processed bamboo.
October 21, 2009 Briefing Facebook Settles Privacy Lawsuit for $9.5 Million
Facebook recently settled a class action lawsuit filed in California against its Beacon program.
October 21, 2009 Briefing Use of Celebrity Image in Greeting Card May Violate Publicity Right
Paris Hilton sued Hallmark Cards after a Hallmark birthday card contained a picture of Paris Hilton’s head super-imposed on a cartoon’s body with a caption that read, “Paris’s First Day as a Waitress” and included Hilton’s catch-phrase “That’s hot.” Hilton sued Hallmark for violation of her right of publicity as well as violations of the Lanham Act.
October 20, 2009 Briefing COPPA Settlement for Improper Age Screening Results in $250,000 Civil Penalty
Iconix Brand Group, Inc. owner of the Mudd, Candie's, Bongo and OP brands (brands with wide appeal to children), settled on October 20, 2009 with the Federal Trade Commission over its information collection practices on many of its brand-specific sites.
October 13, 2009 Briefing Class Action Filed for Invalid Instant Win Codes in Sweepstakes
A class action lawsuit was filed against a major alcoholic beverage manufacturer alleging that some instant win game codes distributed in connection with the “Silver Ticket Sweepstakes” were invalid.
October 13, 2009 Briefing RE/MAX International Wins Trademark Infringement Suit
RE/MAX International, Inc. brought a trademark infringement suit against Trend Setter Realty, LLC, for use of “red-over-white-over-blue horizontal bar design” in connection with real estate services.
October 7, 2009 Briefing FTC Announces Final Update To Endorsement and Testimonial Guides
The Federal Trade Commission adopted final changes to the Guides Concerning the Use of Endorsements and Testimonials in Advertising.
October 7, 2009 Briefing FTC Enters Into Final Consent Agreement Regarding Product Claims
The FTC entered a final consent agreement with Constellation Brands concerning the FTC’s charges that ads for Wide Eye caffeinated schnapps were deceptive. 
September 24, 2009 Newsletter Advertising/Promotions Law News
Winston & Strawn's Advertising/Promotions Law News covers topics of interest to the firm's advertising and consumer product company clients in the areas of advertising challenges and litigation, sweepstakes and promotions, privacy and security, and other relevant legal issues.
September 24, 2009 Briefing Winston Wins Victory for Veoh Against Universal Music Group in Copyright Infringement Lawsuit
A federal court recently affirmed that Veoh Networks, an online video Web site, qualified for safe harbor protection under the Digital Millennium Copyright Act.
September 24, 2009 Briefing Florida Attorney General Sues For Failing to Send Rebate Checks On Time
The Florida Attorney General sued Tigerdirect, Inc. for deceptive trade practices with respect to Tigerdirect's advertisements for its mail-in rebates.
September 24, 2009 Briefing CARU Finds Sweepstakes Disclosures Not Clear and Understandable to Children
The Children's Advertising Review Unit reviewed advertising for Mrs. Butterworth's Syrup that aired during children's programming.
September 24, 2009 Briefing Joint Policy Committee Issues Advice Regarding Union Demands Over Payments on Unauthorized Uploads to Web Sites
Recently, the Screen Actors Guild and the American Federation of Television and Radio Artists have been demanding that advertising agencies remit payments to performers and to pension and health funds for videos that have been uploaded to video sharing Web sites, such as You Tube, without the advertising agency or producer's permission.
September 24, 2009 Briefing NAD Recommends That Company Modify "Green" Claims Regarding its Computers
Following a challenge, the National Advertising Division reviewed certain "green" claims touted by Apple regarding its MacBook laptop computers. Specifically, NAD examined the express claim, "The New MacBooks.
September 24, 2009 Briefing Court Finds Browsewrap Agreement Unenforceable
The U.S. District Court for the Eastern District of New York held that Overstock.com's terms and conditions were not enforceable against its customers who did not actually read the terms.
September 24, 2009 Briefing Twitter Amends Terms in an Attempt to Address User Ownership Issues
Twitter recently amended its Web site terms of use to emphasize that users own their own postings.
September 24, 2009 Briefing Site Vicariously Liable for Infringing Content Created by its Web Developer
A janitorial supply corporation, Master Maintenance, hired a third party Web developer, West Central Ohio Internet Link, Ltd., to redesign its Web site.
September 24, 2009 Briefing ISPs Found Liable for Contributory Trademark and Copyright Infringement
A unanimous jury in the U.S. District Court for the Northern District of California found that two ISPs committed contributory trademark infringement and copyright infringement against Louis Vuitton Malettier S.A. for failing to block Web sites offering counterfeit Louis Vuitton merchandise.
September 24, 2009 Briefing Blog Post Generically Describing Patient Experience Did Not Violate Privacy Policy
A Kentucky court recently ruled that a nursing student's blog post about a patient giving birth did not violate the school's policies, which prohibit students from disclosing confidential information, including medical information about patients.
September 24, 2009 Briefing Missouri Enacts Data Breach Notification Law
Effective August 28, 2009, businesses in Missouri are now required to notify Missouri residents if their unencrypted personal information is breached when a risk of harm is present.
September 16, 2009 Newsletter Privacy and Technology Bulletin
Winston & Strawn's quarterly Privacy and Technology Bulletin provides summaries and tips on recent legal developments in the areas of Web site, workplace, health care and financial privacy, data security, software and technology, and privacy issues that arise in interactive company-to-consumer communications.
August 24, 2009 Briefing New York Attorney General Challenges "Free Gas" Promotion
New York Attorney General Andrew Cuomo sued a Florida marketing company for use of allegedly deceptive "free gas" card program.
August 24, 2009 Briefing Established Business Relationship Exception to Prohibition on Pre-recorded Telemarketing Calls Ends August 31
An amendment to the Telemarketing Sales Rule, which was passed last year by the Federal Trade Commission takes effect on September 1, 2009.
August 24, 2009 Briefing Linking From a Kid’s Website to a Non-Compliant Website Is a Violation of CARU Guidelines
The Children’s Advertising Review Unit (CARU) recently found that Kidz Bop LLC violated the CARU Guidelines when it contained a link on the Kidz Bop website to a website which allowed the collection of personally identifiable information from children without fully complying with CARU guidelines.
August 24, 2009 Briefing Harpo Inc. Sues Internet Marketers for Use of Oprah’s Name Without Permission
In 2008, Oprah hosted Dr. Mehmet Oz, the director of the Cardiovascular Institute and a surgery professor at Columbia University. While on the show, Oz discussed the anti-aging properties of acai berries.
August 24, 2009 Briefing FTC Settles Case Over "Made In The USA" Claims
The FTC recently settled a case against Enhanced Vision for making "made in the U.S.A." claims about its desktop and portable video magnifiers.
August 24, 2009 Briefing NAD Finds "Unbeatable Price" Claims Are Permitted If Based On Low Price Guarantee
In June 2009, the NAD reviewed Wal-Mart’s use of "unbeatable prices" in conjunction with its price matching policy. Specifically, Wal-Mart was making the claim "Unbeatable Prices" along with the disclosure "We’ll match the price of any local competitor’s printed ad for an identical product.
August 24, 2009 Briefing Weight Loss Website Required To Disclose Its Relationship To Products Featured In Its Reviews
The Electronic Retailing Self-Regulation Program reviewed Urban Nutrition’s website in response to a challenge from its competitors. The website claimed to be an unbiased, independent resource for consumers regarding weight loss and diet products.
August 24, 2009 Briefing Deceptive Packaging Lawsuits Against Cereal Manufacturers Do Not Bear "Froot"
Two class action lawsuits claiming that breakfast cereal packaging was deceptive under California false advertising and deceptive practices law were rejected recently. In Videtto v. Kellogg USA, the federal district court in Sacramento ruled that a reasonable consumer would not be deceived into believing that fruit was contained in "Fruit Loops" cereal.
August 24, 2009 Briefing Use of Copyrighted Images in Biographical Work of Artist Is Fair Use
In a recent decision, a district court found that the use of cover images from Warren Publishing’s monster magazines in a biographical book about the life of the images’ artist, Basil Gogos, was "fair use" of the images and not an infringement.
August 24, 2009 Briefing Maine Kid’s Privacy Law Takes Effect September 12
As we have previously reported, the Maine governor signed a new law that: (1) puts an absolute prohibition on using personal information of a minor to market to the minor or to promote any course of action regarding a product to a minor — whether parental permission has been obtained or not and whether you know the person’s age or not; and (2) prohibits knowingly collecting personal information from children in Maine under 18 for "marketing purposes," without first obtaining parental consent.
August 24, 2009 Briefing Class Action Settlement Reached Over Sale of Customers’ Personal Information
According to a complaint filed against Time Warner Entertainment Co. in 1998, the company had sold the personal information of over 7 million customers — which information included the customers’ social security numbers and drivers’ license numbers — to third parties including telemarketers, direct marketing companies, and Time Warner affiliates and divisions.
July 20, 2009 Briefing CARU Recommends Modification to Disney's Sweepstakes Advertisement
The Children's Advertising Review Unit challenged a television ad for Disney's "My Movie Rewards." In the commercial, a voiceover stated that codes were found inside DVDs and later stated that every eligible code yields an entry into the million dollar sweepstakes.
June 20, 2009 Briefing NY AG Takes Action Over Fake Blog Postings
The New York Attorney General recently settled with Lifestyle Lift, a cosmetic surgery franchise, over allegations that Lifestyle posted fake customer reviews of its services on its blog and other Web sites.
July 20, 2009 Briefing ".cm" Domain Landrush Period Opens Putting Brands at Risk
".cm" is the country code top level domain assigned to Cameroon. It is significant to brand owners because Internet users searching for brand owners' Web sites frequently mistype ".com" as ".cm.
July 20, 2009 Briefing Possession of Copyrighted Work Not an Inference of Infringement
The Sixth Circuit has held that access to an allegedly infringed copyrighted work is not necessarily established where the only evidence of access is mere receipt of the allegedly infringed work by an employee of the company linked to the defendant.
July 20, 2009 Briefing Retailer Held Responsible for Claims of Product Manufacturer
The national pharmacy chain Rite Aid has agreed to pay $500,000 to settle charges from the FTC that it engaged in deceptive advertising for the "Germ Defense" tablets it sold at its various retail stores.
July 20, 2009 Briefing Use of "Uncleared" Prop Not a Copyright Infringement
Gottlieb Development LLC sued Paramount Pictures for copyright infringement, among other claims for Paramount's unauthorized use of the "Silver Slugger" pinball machine.
July 20, 2009 Briefing CDA Shields Site Because It Did Not Require User to Provide Information
Plaintiff sued MySpace in state court on behalf of her daughter, who was assaulted by a sexual predator she met on the social network.
July 20, 2009 Briefing User That Did Not See Site Terms May Still be Bound
Plaintiff sued Expedia in the Eastern District of Missouri despite a provision in Expedia's terms and conditions stipulating that all disputes be brought in the courts of Kings County, Washington. In order to book travel through Expedia, a user must either create an account or log in as a guest.
July 20, 2009 Briefing CDA Defense Not Available Against FTC Claims of Unfair Practices
According to the FTC, Accusearch Inc. had engaged in an unfair practice when it sold information contained in telephone records.
July 20, 2009 Briefing EU Working Group Indicates Social Networks and Some Users Must Comply with EU Privacy Laws
Under the EU Data Privacy Directive, a working group was set up to examine the impact of the directive on the protection of individuals with regard to the processing of their personal data.
June 29, 2009 Newsletter Advertising/Promotions Law News
Winston & Strawn's Advertising/Promotions Law News covers topics of interest to the firm's advertising and consumer product company clients in the areas of advertising challenges and litigation, sweepstakes and promotions, privacy and security, and other relevant legal issues.
June 29, 2009 Briefing Court Considers Liability Under CAN-SPAM for Emails Sent by Affiliates
The United States brought suit under CAN-SPAM against Impulse Media Groupfor emails sent by its affiliates. Impulse operated an affiliate program named "SoulCash" in which affiliates earned money every time they referred a customer who subscribed to one of Impulse's Web sites.
June 29, 2009 Briefing Point Certificates Held Not Gift Cards
The United States Court of Appeal for the 9th Circuit recently reversed a lower court decision in Reynolds v. Philip Morris USA Inc., which held that California's gift certificate law applies to on-pack proofs of purchase issued by Philip Morris in connection with its Marlboro Miles loyalty program.
June 29, 2009 Briefing Lawsuit over Allegedly False Savings Claim
Expedia recently filed a lawsuit against Priceline, a competing online travel provider, alleging that Priceline is engaging in a misleading advertising campaign in which it falsely claims that consumers can save "half off" hotel prices compared to Expedia.
June 29, 2009 Briefing Limited Time Remains to Protect Trademark by Registering ".cm" Domain Name
".cm" is the country code top level domain assigned to Cameroon. It is significant to brand owners because Internet users searching for brand owners' Web sites frequently mistype ".com" as ".cm." For example, "google.cm" receives approximately 20,000 hits per day.
June 29, 2009 Briefing Twittersquatting Generates Cybersquatting Lawsuit
When Anthony La Russa, manager of the St. Louis Cardinals, learned that an unknown Twitter user created an account at twitter.com/TonyLaRussa and pretended to post updates as La Russa, he filed suit against the unknown user and Twitter in the Superior Court of San Francisco, alleging trademark infringement and dilution, cybersquatting, and misappropriation of name and likeness.
June 29, 2009 Briefing FTC Settles Charges of False Biodegradeable Claims
The FTC recently settled charges against retailers Kmart Corporation and Tender Corporation for making biodegradable, or environmentally beneficial claims about each companies respective products and product packaging.
June 29, 2009 Briefing The National Advertising Division Recommends Limiting of Advertiser's Taste Preference Claims
The National Advertising Division of the Council of Better Business Bureaus recently reviewed Domino's Pizza's advertising for its "oven baked" sandwiches following a challenge from Subway.
June 29, 2009 Briefing Resfusal to Honor Sales Prices Brings Action
Albertsons and the Florida AG recently reached an agreement regarding the AG's allegations that Albertsons refused to honor sales prices printed in the grocery retailer's weekly flyer.
June 29, 2009 Briefing Web Site Terms and Conditions Found Unenforceable Where It Containted Unilateral Right to Modify
Blockbuster operates an online service where consumers can rent videos online, and, through a contract Blockbuster has with Facebook, consumers' movie rental choices will then be placed on the consumers' Facebook pages.
June 29, 2009 Briefing FTC Brings Action over Online Tracking Application
The Federal Trade Commission recently settled with a major U.S. retailer over claims that company engaged in unfair and deceptive practices by asking consumers to download an online tracking application without accurately disclosing what information would be collected by the application, and how such information would be used.
June 29, 2009 Briefing New Breach Notification Laws in South Carolina and Alaska, Revised in Maine
Two data breach notification laws are to go into effect on July 1 in South Carolina and Alaska, and are very similar to the existing laws in other jurisdictions.
June 29, 2009 Briefing Nevada to Require Companies to Encrypt Data on Mobile Devices
Under existing Nevada law, companies must encrypt personal information that contains financial data or social security numbers when transferring that data outside of the company.
June 29, 2009 Briefing Nutter Settles with FTC over Data Security Allegations
The FTC recently settled with B. Nutter & Company, a company that provides single-family mortgage loans, regarding the FTC's claims that B. Nutter failed to properly safeguard and secure consumer personal information in violation of the FTC's Safeguards Rule and Privacy Rule.
June 16, 2009 Newsletter Privacy and Technology Bulletin
Winston & Strawn's quarterly Privacy and Technology Bulletin provides summaries and tips on recent legal developments in the areas of Web site, workplace, health care and financial privacy, data security, software and technology, and privacy issues that arise in interactive company-to-consumer communications.
June 10, 2009 Briefing Only Three Days Remain to Protect Your Trademark on Facebook
Facebook announced that beginning at 12:01 a.m. (Eastern) on Saturday, June 13, 2009, it is estimated that 200 million users will be able to select "usernames," which are Facebook Web addresses consisting of their trademark, brand name, or personal name.
May 26, 2009 Newsletter Advertising/Promotions Law News
Winston & Strawn's Advertising/Promotions Law News covers topics of interest to the firm's advertising and consumer product company clients in the areas of advertising challenges and litigation, sweepstakes and promotions, privacy and security, and other relevant legal issues.
April 22, 2009 Briefing Company Subject to Writer's Union Received Objection Regarding User-Generated Content
The Writers Guild of America (WGA) has objected to a television network's request for story ideas from mothers for its new sitcom, claiming that it violates the network's contract with the guild. ABC created a new sitcom that was based on an online video series that featured brief vignettes about funny, stressed-out moms, which were inspired by stories submitted by viewers via an online forum.
April 22, 2009 Briefing FTC Settles With Major Packaged Food Manufacturer for Charges of False and Misleading Cereal Ads
The FTC recently settled charges against a major packaged food manufacturer, alleging that its cereal advertising was false and misleading.
April 22, 2008 Briefing Court Finds "#1 Bridal Show" Claim Is Puffery
A claim that a wedding showcase is "Houston's #1 Bridal Show" is puffery, and not a claim that would require substantiation, according to a recent decision by a federal court in Texas.
April 22, 2009 Briefing Lawsuit Filed Over "Green" Seal Of Approval
S.C. Johnson & Son, Inc. was recently sued for its use of a seal of approval on the front of its Windex product that states "Greenlist" and includes leaves on the label. Additionally, the packaging states that "Greenlist is a rating system that promotes the use of environmentally responsible ingredients."
April 22, 2009 Briefing Court Finds 30-Second Song Previews are Not a Fair Use
In order to provide cell phone users with a 30-second song clip they can listen to before purchasing a ringtone, AT&T sought a public performance license from the American Society of Composers, Authors and Publishers for a number of the songs used in its previews.
April 22, 2009 Briefing Insurance Policy's "Advertising Injury" Clause Found to Apply to a Claim of Trademark Infringement
The Minnesota Supreme Court recently held that an insurance policy containing coverage for an "advertising injury" or "infringement of a title" applies to a claim of trademark infringement. he owner of the "Hobbit Travel" travel agency was sued by the administrator of the rights to J.R.R. Tolkien's The Hobbit and The Lord of the Rings trademarks for its use of the "Hobbit" designation.
April 22, 2009 Briefing Bayer Settlement Agreement Requires Corrective Advertising Campaign
The California Attorney General recently reached a settlement agreement with Bayer regarding the AG's claims that Bayer engaged in deceptive advertising for YAZ. The AG alleged that Bayer made claims about its product that were not FDA approved, in violation of a previous agreement that prohibited Bayer from making false or misleading claims about its products sold in the United States.
April 22, 2009 Briefing Venue Selection Clause Struck by Court Due to "of" Language
The California Appellate Court recently struck the venue selection clause which attempted to elect venue in federal courts in Virginia via America Online's membership contract. AOL's clause contained a choice of law provision designating Virginia courts by stating the "courts of Virginia".
April 22, 2009 Briefing The Second Circuit Finds that Google's Keyword Sales May Be "Use in Commerce"
The Second Circuit Court of Appeals recently held that Google's keyword ad practices constituted a "use in commerce" for purposes of trademark law.
April 22, 2009 Briefing Telemarketer Penalized for Failure to Determine Source of Data Leads
VICI Marketing LLC, a telemarketing company, obtains customer contact data from third-party data brokers. According to the terms of a recent settlement the company reached with the Florida attorney general, VICI will now conduct due diligence when obtaining data from third parties and before using such data for telemarketing purposes.
April 22, 2009 Briefing Creditors Must Have ID Theft Measures in Place by May 1
Companies that fall under the Red Flag Rules' definition of "creditor" must have a plan in place by May 1 that outlines how the companies protect consumer data from identity theft.
April 22, 2009 Newsletter Advertising/Promotions Law News
Winston & Strawn's Advertising/Promotions Law News covers topics of interest to the firm's advertising and consumer product company clients in the areas of advertising challenges and litigation, sweepstakes and promotions, privacy and security, and other relevant legal issues.
March 25, 2009 Briefing New York Attorney General Takes Action for Rebate Promotion That Awarded Prepaid Cards Instead of Cash
AT&T Mobility agreed to pay more than $2.63 million to consumers as part of its agreement with the New York Attorney General over AT&T's rebate offers for cellular phones and wireless services.
March 25, 2009 Briefing Appellate Court Holds That Web Site Not Gambling Where Bets Were Non-Binding
A state appellate court in Washington held that Betcha.com, an Internet betting exchange, was not in violation of the Washington State Gambling Act by providing a forum for person-to-person social wagering.
March 25, 2009 Briefing Web Site Host That Solicited Allegedly Defamatory Comments May Lose CDA Immunity
A state appellate court recently found that the specific solicitation of potentially defamatory content and the intermingling of third-party content with one's own comments may remove a Web site host or user from immunity under the Communications and Decency Act.
March 25, 2009 Briefing Court Allows Jackson Browne's Claims to Proceed For Use of Song in Commercial
Last month, a federal court denied Sen. John McCain and the Republican National Committee’s (RNC) motion to dismiss a lawsuit filed by Jackson Browne.
March 25, 2009 Briefing Domain Name Dispute Procedure Not Proper Way To Resolve Copyright Infringement Claim
A Uniform Domain Name Dispute Resolution Policy Panel denied Viacom International, Inc. relief in its complaint over the domain name stansdad.com. The UDRP is an alternative dispute resolution mechanism designed to resolve domain name disputes in a quick and cost-effective manner.
March 25, 2009 Briefing FTC Allows Manufacturers To Provide Warranty Terms or Electronic Devices
A recent FTC staff opinion addressed whether it is possible for a manufacturer of electronic devices to comply with the Magnuson-Moss Warranty Act by providing warranty terms electronically on a warranted device.
March 25, 2009 Briefing Advertisers That Failed to Comply With NAD Decision Referred to The FTC
The National Advertising Division has asked the Federal Trade Commission to investigate Mead Johnson’s advertising for its infant formula.
March 25, 2009 Briefing Non-Famous and Non-Distinctive Trademarks Not Protected Under the Federal Cybersquatting Act
A court ruled that a plaintiff, Philbrick's Sports, could not assert a claim under the Anticybersquatting Consumer Protection Act against eNom, Inc. for holding domain names similar to Philbrick's trademark, because the ACPA only protects famous and distinctive trademarks.
March 25, 2009 Briefing Court Holds Online Retailers Not Required To Comply with FACT Act's Prohibition on the Printing of Credit Card Expiration Dates On Receipts
An individual sued online retailer Zazzle when the company displayed credit card expiration dates on its on-screen payment confirmation pages.
March 25, 2009 Newsletter Advertising/Promotions Law News
Winston & Strawn's Advertising/Promotions Law News covers topics of interest to the firm's advertising and consumer product company clients in the areas of advertising challenges and litigation, sweepstakes and promotions, privacy and security, and other relevant legal issues.
March 19, 2009 Newsletter Privacy and Technology Bulletin
Winston & Strawn's quarterly Privacy and Technology Bulletin provides summaries and tips on recent legal developments in the areas of Web site, workplace, healthcare and financial privacy, data security, software and technology, and privacy issues that arise in interactive company-to-consumer communications.
February 23, 2009 Briefing Promotion Open Only to Females Determined Not Discriminatory
In 2006, Dr. Michael Cohen filed suit against the California Angels for claiming age and sex discrimination based on an Angels' Mother's Day promotion whereby all females 18 years of age and older attending the baseball game at Angeles Stadium received a free Angels tote bag.
February 23, 2009 Briefing FTC Announces Do-Not-Call Settlements For Use of Numbers Obtained Via Sweepstakes, Free, and Other Promotional Offers
The FTC has settled two do-not-call cases with the time share providers Westgate Resorts, Ltd. (and related entities) and All in One Vacation Club, LLC (and related entities), with civil penalties from the two companies totaling $1.2 million.
February 23, 2009 Briefing FTC Settles with Advertisers Over "Free" Offers
The FTC reached a settlement with two companies, Complete Weightloss Center, Inc. and JAB Ventures, LLC, that marketed weight-loss products online. Complete Weightloss urged consumers to buy the products through a series of online ads that offered "free" trials, such as "Click Here to try it Absolutely FREE*" with the asterisk referring consumers to the small disclosure:
February 23, 2009 Briefing Iowa Court Rules on Uncashed Rebate Check Escheat Issue
An Iowa District Court denied the Summary Judgment Motions filed by a major pharmacy retailer and major wireless carriers against the State of Iowa who was seeking to have such parties declared "holders" of unclaimed property (uncashed rebate checks), which was allegedly not reported and transmitted to the state as required under state escheat laws.
February 23, 2009 Briefing FTC Charges Company With Failing to Live Up To Rebate Promises
An Indiana-based reseller of computer-related hardware and other electronics equipment, which distributed its products through numerous national retailers, offered many mail-in rebates ranging in value from $20 to $150.
February 23, 2009 Briefing FTC Report Recommends Self-Regulation for Behavioral Advertising
In December 2007 the FTC sought comment on proposed behavioral advertising principles, which would have required companies to give consumers a choice as to whether information they submitted online was used for behavioral advertising purposes.
February 23, 2009 Briefing NAD Holds Use of "Superior" Not a Comparative Claim in the Context Used
"Superior Gray Coverage" was used on a package of L'Oreal Excellence Crème. Procter & Gamble Company challenged the claim in front of the NAD, arguing that it was a superiority claim against all other hair coloring products.
February 23, 2009 Briefing Electronics Retailer Criticized for Paying Consumers to Write Favorable Reviews
In what it alleges was a random and unauthorized incident, an online advertising representative for a major electronics retailer was found to be offering to pay consumers to post favorable reviews on sales sites such as Amazon.com.
February 23, 2009 Briefing Warcraft Bot Violates DMCA Anti-Circumvention Provisions Even Without Copyright Infringement
An Arizona judge recently ruled that a bot engineered to avoid detection by the World of Warcraft anti-bot detection mechanisms violated sections 1201(a)(2) and 1201(b)(1) of the Digital Millennium Copyright Act.
February 23, 2009 Briefing Company President Personally Liable for Company's Purchase of Counterfeit Software
The president of Ram Distribution LLC, was recently sued for vicarious and contributory copyright and trademark infringement when he purchased counterfeit software through the secondary market. The software owner alerted Mr. Boldin of the infringement, however he continued to purchase the cut-rate software which resulted in the software owner suing Ram Distribution and Mr. Boldin for trademark and copyright infringement.
February 23, 2009 Briefing MMA Revises Mobile Advertising Self-Regulatory Standards
The Mobile Marketing Association, a self-regulatory group that provides guidelines for its members—and others—in how to engage in responsible mobile advertising, updated its mobile advertising guidelines in January.
February 23, 2009 Briefing Online Computer Retailer Agrees to Settle FTC Data Breach Allegations
An online computer retailer has agreed to refrain from making deceptive privacy and data security promises and to implement and maintain a comprehensive data security program to safeguard consumers' personal information under a proposed agreement and consent order with the FTC.
February 23, 2009 Briefing Massachusetts Delays Encryption Requirement
As we reported in October, Massachusetts recently amended its data protection law to require companies to both encrypt data when sending it electronically and to put in place a written data security program.
February 23, 2009 Newsletter Advertising/Promotions Law News
Winston & Strawn's Advertising/Promotions Law News covers topics of interest to the firm's advertising and consumer product company clients in the areas of advertising challenges and litigation, sweepstakes and promotions, privacy and security, and other relevant legal issues.
January 30, 2009 Briefing Video Sharing Service Not Liable for Material Uploaded to the Web Site by Third Parties
The District Court for the Northern District of California held that Defendant Veoh, a video sharing service similar to YouTube, was protected by "safe harbors" under the Digital Millennium Copyright Act and not liable for copyright infringement for material uploaded to its Web site.
January 30, 2009 Briefing Pre-Paid Account Allegedly Subject to State Gift Card Laws
Skype was recently sued for violating the State of Washington gift card laws. In particular, the class action complaint alleges that Skype's "Stored Value Accounts" constitute gift cards under the Washington law, inasmuch as a customer establishes such an account by paying Skype a specific amount, and then Skype deducts from that account for any charges the customer accrues.
January 30, 2009 Briefing SMS Short Code Patent Asserted
Lawyers for TeleCommunication Systems Inc. recently sent letters to mobile marketing firms and SMS aggregators alleging infringement of a short code patent. Interestingly, the lawyers for TCS are the same lawyers for the owner of the Cairns patent, which has become well known in the promotional law community.
January 30, 2009 Briefing Court Rules Texas Hold 'Em Poker Is a Game of Skill Under State Gambling Law
A trial judge in Pennsylvania dismissed criminal gambling charges against the operator of a poker room, holding that Texas Hold 'em is a game of skill. The poker operator had set up poker tables in a garage.
January 30, 2009 Briefing FDA Warns That Soft Drink Is Misbranded
Last month, the Food and Drug Administration (FDA) sent a warning letter to Coca-Cola for the labeling of its Diet Coke Plus soft drink. The FDA warned that it believed Coca-Cola's use of "Diet Coke Plus" in conjunction with "Diet Coke with Vitamins & Minerals" was a nutrient content claim.
January 30, 2009 Briefing Retailer Charged With Not Selling at Lowest Advertised Price
One of the largest fast food retailers agreed to pay $645,000 in connection with its advertising that offered any sandwich for $5. Sonoma County District Attorney's office investigated Subway, and alleged that its advertising was misleading because it failed to disclose a number of restrictions to the $5 offer meal deal, and that various franchises were overcharging consumers for the sandwich that was purchased in combination with the offer.
January 30, 2009 Briefing Consumer Products Safety Commission Clarifies Law
Effective February 10, 2009, the Consumer Product Safety Improvement Act of 2008 (CPSIA) makes the existing standard for toy safety a mandatory consumer product safety standard, and requires certain products to be tested by an accredited third-party laboratory.
January 30, 2009 Briefing Search Engines That Provided Editorial Guidelines Still Immune for Third Party Content Under CDA
Internet search engines were found to be immune from liability for advertisements purchased by illegal gambling Web sites under Section 230 of the Communications Decency Act.
January 30, 2009 Briefing Online Social Network Accused of Deceptive E-mail Marketing
A class action lawsuit was filed against online social network Classmates.com for allegedly wrongfully inducing individuals to become paid members of the network through a deceptive e-mail marketing campaign.
January 30, 2009 Briefing No Trademark Infringement Likely Where Weak Trademark Was Used in Close Conjunction to Strong Brand
Tastemakers Media conducted events and parties aimed at people who "wish to engage in a luxury lifestyle" and from 1998-2002 published a "nightlife guide." In 1999, Tastemakers filed trademark applications for a stylized version of "Tastemakers NYC" and the word "Tastemakers."
January 30, 2009 Briefing California Court Finds Zip Code Is Not "Personal Information"
California’s Song-Beverly Credit Card Act prohibits retailers from requesting or requiring, as a condition of accepting a credit card payment, "personal identification information" of a cardholder that does not appear on the credit card itself.
January 30, 2009 Briefing Task Force That Includes Leading Social Networks Issues Final Report
As we reported in January 2008, 49 states reached a settlement with MySpace regarding protection of children on the Internet. As part of the settlement, MySpace agreed to lead a task force of online social networks and states attorneys general which would study safety of children in social networking Web sites and develop guidelines and mechanisms for keeping children safe in such environments
January 30, 2009 Briefing New Jersey Seeking Comments to Revised Computer Security Rules
Under New Jersey's Identity Theft Prevention Act, companies are required to notify individuals in the event of a data breach, must securely destroy certain types of data, and are limited in use of Social Security Numbers.
January 30, 2009 Newsletter Advertising/Promotions Law News
Winston & Strawn's Advertising/Promotions Law News covers topics of interest to the firm's advertising and consumer product company clients in the areas of advertising challenges and litigation, sweepstakes and promotions, privacy and security, and other relevant legal issues.
December 17, 2008 Briefing Radio Station Ordered to Pay Contest Prize
WDWG conducted the Colgate country showdown singing contest, which was a qualifying event of a larger national competition. A radio station employee incorrectly awarded the prize to the wrong person.
December 17, 2008 Briefing Type Size Used on Gift Card Terms and Conditions May Be Deceptive Under New York Law
Simon Property Group issues Visa branded gift cards in its New York malls. On the reverse of the card, it states, "An administrative fee of $2.50 per month will be deducted from your balance beginning with the seventh month from the month of card purchase."
December 17, 2008 Briefing Federal Trade Commission Proposes Revisions to the Guides Concerning the Use of Endorsements and Testimonials in Advertising
On November 21, 2008 the Federal Trade Commission published its Notice of Proposed Changes to the Guides Concerning the Use of Endorsements and Testimonials in Advertising. The proposed changes are subject to comment until January 30, 2009, and any changes are likely to be finalized by Spring 2009.
December 17, 2008 Briefing Federal Court Holds; SAG Must Arbitrate P&W Disputes
The Joint Policy Committee of the AAAA-ANA seems to have won the final battle against the Screen Actors Guild and its Pension and Health Plans in their ongoing attempt to unilaterally determine whether the percentage allocated between covered and non-covered services in a talent agreement is appropriate.
December 17, 2008 Briefing NAD Determines That "Green" Advertising Should be Discontinued
GP Plastics of Dallas, manufacturer of PolyGreen plastic newspaper bags that The New York Times had planned to switch to next year, advertised its bags as "environmentally friendly," as well as promising a "green tomorrow" and "saving the planet."
December 17, 2008 Briefing Celebrity's Loan-Out Company Fails to Provide Shelter From Personal Liability
Actress Charlize Theron's production company signed an agreement with watchmaker Raymond Weil to promote its "Shine" watch collection. In her endorsement agreement, Theron agreed to wear the Raymond Weil watches exclusively.
December 17, 2008 Briefing California Court Finds Use of Celebrity's Name in Press Release Is Actionable
A major mobile phone service provider issued an advertising/promotional article styled as a “press release” which compared the release of its new product to famous war hero and test pilot Charles "Chuck" Yeager's breaking of the sound barrier, without Yeager's permission.
December 17, 2008 Briefing Ninth Circuit Protects a Video Game's Use of a Location Name as Free Speech
The Ninth Circuit held that the use of a location name in a video game was a form of protected free speech. In its recent game, Grand Theft Auto: San Andreas, Rockstar Games created a strip club named "The Pig Pen," in an area that was supposedly representative of East Los Angeles.
December 17, 2008 Briefing French Court Finds Clauses in Internet Marketplace Web Site Terms of Use 'Illicit or Abusive'
In an October 28, 2008 judgment, the Paris Court of First Instance ruled that 18 clauses in Amazon.fr's terms and conditions were "illicit or abusive." The "illicit or abusive" clauses were found throughout the terms and conditions, including in the general sales conditions, the conditions for the protection of private data, and conditions for participation in Market Place Amazon.
December 17, 2008 Briefing Ad Accused of Marketing Alcohol to Children
The Australian Drug Foundation has accused Dominos Pizza of marketing alcohol to children for an Australia advertising campaign advertising a pizza containing barbeque sauce labeled by a bourbon maker.
December 17, 2008 Briefing FTC Announces $1 Million COPPA Settlement
On December 11, 2008 the FTC announced that it had settled a COPPA complaint brought against Sony BMG Music Entertainment. In its complaint, the FTC had alleged that Sony BMG was not obtaining parental consent prior to collecting (online) personally identifiable information from children under the age of 13.
December 17, 2008 Briefing ISPs Sued for Monitoring Computer Use for Advertising Purposes
A class action lawsuit was recently filed in California against NebuAd Inc. and six Internet service providers for allegedly failing to provide adequate notice and opt-in opportunities before disclosing sensitive and personally identifying information through the use of deep packet inspection.
December 17, 2008 Briefing Federal Agency Issues Recommended Guidelines on Data Security for Cell Phones, PDAs
The National Institute of Standards and Technology (NIST), a non-regulatory federal agency within the U.S. Department of Commerce, recently issued new security guidelines to businesses and other federal agencies to address data security and privacy issues associated with mobile devices used by their employees.
December 17, 2008 Briefing Texas Attorney General Rejects TD Ameritrade Data Breach Settlement as Violating the Class Action Fairness Ac
This month, the Texas Attorney General's office sent a letter to the judge in a class action litigation involving the data breach of over six million customers of TD Ameritrade.
December 17, 2008 Newsletter Advertising/Promotions Law News
Winston & Strawn's Advertising/Promotions Law News covers topics of interest to the firm's advertising and consumer product company clients in the areas of advertising challenges and litigation, sweepstakes and promotions, privacy and security, and other relevant legal issues.
December 11, 2008 Newsletter Privacy and Technology Bulletin
Winston & Strawn's quarterly Privacy and Technology Bulletin provides summaries and tips on recent legal developments in the areas of Web site, workplace, healthcare and financial privacy, data security, software and technology, and privacy issues that arise in interactive company-to-consumer communications.
October 24, 2008 Briefing Advertisers Pay $7 Million Settlement for Unsolicited Marketing of Text Messages
The Timberland Company and GSI Commerce, Inc. agreed to pay a $7 million settlement agreement for sending thousands of unsolicited text messages to consumers marketing upcoming sales. A class action was brought against the two entities alleging that the text messages sent were unsolicited, in violation of the Telephone Consumer Protection Act.
October 24, 2008 Briefing Forum-Selection Clause Available Only Online Found Enforceable
The Pentecostal Temple Church filed suit against its Internet services and technology provider Multicast Media Technologies, Inc. for breach of contract in the District Court for the Western District of Pennsylvania.
October 24, 2008 Briefing National Advertising Division Implements Changes to Speed Up Decision Process
The National Advertising Division (NAD) has revised its challenge process to make it faster for advertisers and challengers to obtain NAD decisions. The NAD will now only allow its attorneys to grant extensions for three days.
October 24, 2008 Briefing TV Show Can Be Considered Advertising for Purposes of Right of Publicity
In 2005 the National Football League made a television show to promote the video game of its licensee, EA Sports, called Madden NFL 06. The show included clips of voiceovers from various films about the history of the NFL.
October 24, 2008 Briefing Documentary Found to Meet Newsworthiness and Incidental Use Exceptions to Right of Publicity Claim
An individual who incidentally appeared in a clip of the documentary "Super Size Me," brought suit against the filmmaker under New York Civil Rights Law § 51 for the allegedly unlawful use of her image in the movie.
October 24, 2008 Briefing Broad License Agreement Found to Permit Sale of Digital Downloads by Large Retailer
Richard Reinhardt, a member of the punk band The Ramones during the 1980s, authored six songs during that period. Reinhardt entered into a recording agreement with Ramones Productions which included a provision authorizing Ramones Productions "to manufacture advertise, sell, distribute, lease, license, or otherwise use or dispose of the masters and phonograph records embodying the masters, in any and all fields of use, by any method no or hereafter known."
October 24, 2008 Briefing Company Files Two Copyright Suits for Forwarding of its Newsletters
A publisher of a weekly newsletter on the energy industry filed suit in federal court in New York against a financial services firm and a ratings agency alleging copyright infringement based on the defendants' electronic forwarding of the publisher's newsletter.
October 24, 2008 Briefing Fair Use Is a Defense in New York Common Law Copyright Infringement
The New York Supreme Court held this month that EMI Records Ltd. and Capitol Records LLC could not prohibit a third party from using a portion of John Lennon's song "Imagine" in a documentary film that criticized the theory of evolution.
October 24, 2008 Briefing NAD Reviews Range of Savings Claims
The National Advertising Division of the Better Business Bureau (NAD) recently reviewed advertising by Daimler Trucks North America LLC for its Freightliner Cascadia tractor trucks in which the advertiser claimed that its trucks "could save consumers as much as $950 to $2750 a year per truck"
October 24, 2008 Briefing StubHub Immune from Scalping Claims Under § 230 of the Communications Decency Act
An Oregon court found that StubHub, an Web site where consumers can place their event tickets for sale, was immune from scalping claims under the Communications Decency Act § 230.
Octboer 24, 2008 Briefing Companies Have Duty to Encrypt Data When Sending in Nevada and Massachusetts
Starting October 1, 2008, companies doing business in Nevada were required under state law to encrypt data when sending it electronically.
October 24, 2008 Briefing Proposed Final Rule: Consideration of Aircraft Impacts for New Nuclear Power Reactors
On Oct. 15, 2008, NRC staff sent a draft of final rule, SECY-08-0152, “Consideration of Aircraft Impacts for New Nuclear Power Reactors,” to the Commission for approval. The rule would amend 10 C.F.R. Parts 50 and 52 to require nuclear power plant designers to evaluate design features and functional capabilities that could avoid or mitigate, to the extent practical and with reduced reliance on operator actions, the effects of a commercial aircraft impact.
October 24, 2008 Newsletter Advertising/Promotions Law News
Winston & Strawn's Advertising/Promotions Law News covers topics of interest to the firm's advertising and consumer product company clients in the areas of advertising challenges and litigation, sweepstakes and promotions, privacy and security, and other relevant legal issues.
September 26, 2008 Briefing Video Sharing Service Not Liable For Material Uploaded to the Web Site by Third Parties
The District Court for the Northern District of California held that Defendant Veoh, a video sharing service similar to YouTube, was not liable for copyright infringement for material uploaded to its Web site.
September 26, 2008 Briefing CBS Sues NFL for Free Speech and Anti-Trust Violations
CBS Interactive Inc., an operator of fantasy sports leagues, sued the National Football League Players Association (NFL) seeking a judgment that the use of player statistics does not violate the right of publicity and is protected by the First Amendment and declaring that any action by the NFL to exclude CBS from the fantasy sports league market would violate the Sherman Act and the Clayton Act.
September 26, 2008 Briefing Copyright Owners Should Consider Fair Use Before Issuing Takedown Notices Regarding Web Site Contest
The Northern District of California ruled that in order to issue a take-down notice under the Digital Millennium Copyright Act (DMCA) in "good faith," a copyright owner must at least have considered whether the complained-of use could constitute fair use.
September 26, 2008 Briefing Publication of Harry Potter Lexicon is not a Fair Use
J.K. Rowling, author of the Harry Potter series of books, and other plaintiffs sued RDR Books for trademark and copyright infringement, unfair competition, false advertising, deceptive trade practices, and other causes of action for creating a timeline of events, lists of spells, potions, places, creatures, and magical devices in all seven of Rowling’s books.
September 26, 2008 Briefing Several Long Island, NY Gas Stations Accused of Deceptive Practices and False Advertising
The New York Attorney General has sent cease-and-desist letters to approximately 43 gas stations in Long Island, NY for deceptive practices and false advertising.
September 26, 2008 Briefing Remote Storage Digital Video Recorders Do Not Directly Infringe Copyright
Cablevision planned to create a "remote storage" digital video recorder system (RS-DVR) that would allow customers who do not have a DVR to record television shows on Cablevision hard drives at remote locations owned by Cablevision.
September 26, 2008 Briefing Advertising by Auto Manufacturer of Test Results Held Non-Misleading Since Advertised Followed Government Testing Requirements
Hybrid auto owners filed a class action lawsuit against a major automotive manufacturer for engaging in deceptive trade practices in violation of Arkansas law.
September 26, 2008 Briefing Use of a Competitor's Trademark in Metatags and Hidden on Web Site is Willful Trademark Infringement
The First Circuit recently held that an online business that used a competitor’s trademark in its Web site’s metatags and elsewhere hidden on the Web page content had engaged in willful trademark infringement.
September 26, 2008 Briefing Nevada Breach Notice Law Now Requires Encryption
Nevada's data breach notification law went into effect in January 2006. Under the law, companies are required to notify consumers if certain data has been breached. Beginning October 1, 2008, the law will also require that personal information be encrypted.
September 26, 2008 Briefing Customers Bring Class Action Against Bank Following Security Breach; Court Holds No Damages Due
Customers of Indiana's Old National Bancorp brought a class action lawsuit against the bank, alleging that the bank had failed to adequately safeguard and secure the personal information of its customers.
September 26, 2008 Briefing Court Finds That Retailer is Required to Follow Visa Requirements
BJ's Wholesale Club, a large national retailer, was sued by various banks as third party beneficiaries of contracts between Visa U.S.A. Inc. and Fifth Third Bank, for failing to comply with Visa's data security requirements.
September 26, 2008 Newsletter Advertising/Promotions Law News
Winston & Strawn's Advertising/Promotions Law News covers topics of interest to the firm's advertising and consumer product company clients in the areas of advertising challenges and litigation, sweepstakes and promotions, privacy and security, and other relevant legal issues.
September 19, 2008 Newsletter Privacy and Technology Bulletin
Winston & Strawn's quarterly Privacy and Technology Bulletin provides summaries and tips on recent legal developments in the areas of Web site, workplace, healthcare and financial privacy, data security, software and technology, and privacy issues that arise in interactive company-to-consumer communications.
August 27, 2008 Briefing New York Attorney General Settles With Auto Dealer Regarding Deceptive Scratch-Off Game Cards
Five Towns Mitsubishi must pay $115,000 in restitution to consumers, and $35,000 in penalties and costs to the state, for causing advertisements to be mailed to thousands of Nassau County consumers featuring a scratch-off ticket called Dash for Cash.
August 27, 2008 Briefing FTC Issues Final Telemarketing Sales Rule Prohibiting Prerecorded Calls
The Federal Trade Commission recently amended the Telemarketing Sales Rule (TSR) to expressly prohibit telemarketing sales calls that deliver prerecorded messages, unless the seller has previously obtained the recipient's signed, written agreement to receive such calls.
August 27, 2008 Briefing Presidential Candidate John McCain and RNC Sued for Copyright Infringement and Violation of Right of Publicity
Singer and songwriter Jackson Browne filed a lawsuit in federal court in Los Angeles last week against presumptive Republican presidential nominee John McCain, the Republican National Committee, and the Ohio Republican Party
August 27, 2008 Briefing Blogger Sued for Infringement
The Oklahoma Publishing Company and one of its employees sued a blogger, who goes by the name Darth Husker, over an Internet article entitled "Two Sooner Quarterbacks Arrested for Intent to Distribute Cocaine."
August 27, 2008 Briefing Consumer Testimonials Found to be Misleading and to Require Independent Substantiation
Advertising for a green tea, which claimed that drinking green tea causes substantial weight loss without the need to exercise or reduce caloric intake, was found to be false and misleading by the federal district court in Connecticut.
August 27, 2008 Briefing Unsubstantiated Health Claims May Cost Company Up to $30 Million
Airborne Health, Inc. and its founders agreed to pay up to $30 million to settle a complaint by the FTC, and a pending federal class-action lawsuit in California.
August 27, 2008 Briefing Descriptive Use of Third Party Trademark Does Not Infringe
The U.S. District Court for the Southern District of New York held that Dessert Beauty Inc.'s use of the phrase "Love Potion" constituted a fair use because the phrase was used in a generic and descriptive sense.
August 27, 2008 Briefing FTC to Examine Consumer Protection Issues Relating to RFID Technology
The FTC announced this month that it will host a workshop to learn more about the implications of radio frequency identification technology on consumer privacy and protection.
August 27, 2008 Briefing RadioShack Corp. and Texas Settle Data Disposal Case
In April 2007, we reported that RadioShack Corp. was sued by the Texas attorney general for failure to securely destroy customer records.
August 27, 2008 Briefing Internet Impersonation Outlawed in New York
New York Governor David A. Patterson has signed into law S. 4053, which makes it a criminal offense to impersonate someone over the Internet or through electronic communications.
August 27, 2008 Briefing The SEC's Release on Website Disclosure
On August 1, 2008, the SEC issued an interpretive release containing important guidance on the use of corporate websites for the disclosure of information to the investment community. The release also discusses the liabilities under the federal securities laws for statements made on websites. This briefing summarizes the major points of the SEC release and sets forth our key observations and recommendations.
August 27, 2008 Newsletter Advertising/Promotions Law News
Winston & Strawn's Advertising/Promotions Law News covers topics of interest to the firm's advertising and consumer product company clients in the areas of advertising challenges and litigation, sweepstakes and promotions, privacy and security, and other relevant legal issues.
July 24, 2008 Briefing New York Attorney General Settles with Major Corporation Over the Equal Availability of the Free Method of Entry in an Instant Win Game
In late June 2008, a major corporation reached a settlement with the New York Attorney General's office to settle claims that the company did not comply with New York prize promotion  laws by failing to make the free method of obtaining a game card equally available to the purchase method of obtaining a game card in an instant win game.
July 24, 2008 Briefing Consumer Sues State Lottery for Fraud Based on Sale of Lottery Tickets After Jackpot Awarded
A consumer is suing the Virginia State Lottery, claiming that the State Lottery's practice of continuing to promote and sell lottery tickets after the top prizes were already awarded constitutes fraud.
July 24, 2008 Briefing Oregon Rebate Law Amended
You may not have known that in January 2008, the Oregon legislature amended its "Free Offer" and "Rebate" laws.
July 24, 2008 Briefing CARU Takes Issue with Language in Sweepstakes Rules Regarding Celebrity Meet and Greet
The Children's Advertising Review Unit (CARU) recently reviewed advertising for an instant win game marketed to children in which the grand prize included a meet and greet with actress and singer Miley Cyrus.
July 24, 2008 Briefing Disclosure of Material Terms of a Continuity Programs in Terms of Use Was Not Sufficient Disclosure to Avoid FTC Action
The FTC brought action against a software company that provided customers with "free" software but then continued to bill consumers for a "software continuation plan," the terms of which were buried in the software's Terms of Use.
July 24, 2008 Briefing General Knowledge of Counterfeits Does Not Subject Site Operator to Vicarious Trademark Liability
After alleged hundreds of thousands of counterfeit Tiffany silver jewelry were offered for sale on the popular online auction house eBay, the jewelry retailer brought suit, alleging that eBay was liable for both direct and contributory trademark infringement.
July 24, 2008 Briefing Just Because Something is Posted Online Does Not Mean it is Available to be Copied
The Middle District of Florida recently reminded J. Jargon Co., holder in the rights to "Menopause the Musical," that merely because something is publicly available on the Internet, that does not make it fair game to be copied.
July 24, 2008 Briefing Ex-Mattel Employee's Design Work for New Employer Found Infringing
Mattel, the maker of "Barbie," brought suit against MGA Entertainment, the maker of "Bratz," claiming that Mattel owns the Bratz concept drawings because they were created while the designer was under contract as a Barbie designer for Mattel.
July 24, 2008 Briefing FCC Votes to Consider Stricter Regulations Regarding Product Placements
The Federal Communications Commission recently announced that it will consider whether to adopt new regulations to make it clear to television viewers when advertisers have paid to have their products placed in broadcast TV shows.
July 24, 2008 Briefing Copyright Office Now Accepting Online Copyright Registration
As of July 1, the U.S. Copyright Office is now offering online registration of "basic claims" for certain kinds of works, including literary works, visual works, motion pictures and sound recordings.
July 24, 2008 Briefing CD ROM Collection Can Be A Privileged Reproduction Under Copyright Law
A digital collection of a print publication is privileged just as a microform republication would be, according to the Eleventh Circuit Court of Appeals, sitting en banc.
July 24, 2008 Briefing Trade Dress Found Likely to Infringe Packaging
In a matter that has been pending for more than 18 months, McNeil Nutritionals, LLC finally won a preliminary injunction against Heartland Sweeteners LLC from manufacturing and distributing a no-calorie sweetener in packaging that is confusingly similar to McNeil's Splenda® brand.
July 24, 2008 Briefing Court Finds California Merchants May Collect Personal Information During a Credit Card Transaction to Process a Return
A California man who purchased a product from AutoZone filed a class action lawsuit against the company after he was required to provide his name, telephone number, and signature in order to process the return of a gas cap he had purchased earlier that day.
July 24, 2008 Newsletter Advertising/Promotions Law News
Winston & Strawn's Advertising/Promotions Law News covers topics of interest to the firm's advertising and consumer product company clients in the areas of advertising challenges and litigation, sweepstakes and promotions, privacy and security, and other relevant legal issues.
June 27, 2008 Briefing Oregon Department of Justice Reaches Settlement Regarding "Free Cellular Phones" Offer
A major cellular phone and wireless service provider settled a dispute with the Oregon Department of Justice over its "free cellular phones" advertisements.
June 27, 2008 Briefing Online Directory to Pay $3 Million to Settle Misleading Marketing Probe
A national online directory service has agreed to put $3 million into a restitution fund and pay a $150,000 penalty to settle a lawsuit filed by New York Attorney General Andrew M. Cuomo based on allegedly deceptive marketing solicitations.
June 27, 2008 Briefing Arbitrator Holds Against Screen Actors Guild, Taking Away The Ability to Sue in P&W Disputes
The ANA-AAAA Joint Policy Committee on Broadcast Talent Relations recently filed an arbitration request against the Screen Actors Guild with respect to the SAG Producers Pension and Health Funds' issuance of new Multi-Service Commercial Allocation Guidelines.
June 27, 2008 Briefing Right of Publicity Claim Against Advertiser for Use of Celebrity's Name in Press Release Allowed to Proceed by Court
A wireless carrier used the name of test pilot, Chuck Yeager in a press release. The press release stated that Yeager broke the sound barrier and achieved Mach 1 nearly 60 years ago, and that the advertiser had recently broken another kind of barrier with its MACH 1 and MACH 2 mobile command centers, which enabled it to quickly restore service to customers in hurricane-affected areas.
June 27, 2008 Briefing Myspace Immunized by Communications Decency Act
The Court of Appeals for the Fifth Circuit held that the Communications Decency Act (CDA) barred claims that MySpace negligently permitted an underage user to register. Plaintiff Julie Doe, created a MySpace profile when she was only 13 years old and met a sexual predator on the social networking site who later assaulted her.
June 27, 2008 Briefing Online Auction Web Site not Exempt Under CDA
eBay was sued by a customer for fraudulent misrepresentation and other claims related to her participation in a "live auction" on eBay's Web site. The plaintiff asserted that eBay was engaging in shill bidding practices, among other wrongful conduct.
June 27, 2008 Briefing Title of "Real News" Web Site Insufficiently Distinctive to Warrant Trademark Protection
The U.S. District Court for the Southern District Court of New York has held that "The Real News Project" was not sufficiently distinctive to warrant protection under federal trademark law and the common law of New York.
June 27, 2008 Briefing Club Owners not Liable for Infringing Musical Performances
The American Society of Composers, Authors and Publishers brought suit against two of the three owners of a night club for copyright infringement under a theory of vicarious liability.
June 27, 2008 Briefing Bush Signs Amendment to FACT Act
The Fair Credit Reporting Act 2003 amendment allowed individuals to sue merchants who printed credit card expiration dates on credit card receipts.
June 27, 2008 Briefing Do-Not-Call Registrations Must be Honored Indefinitely
The Federal Communications Commission was required, under the Telephone Consumer Protection Act to create a National Do-Not-Call Registry.
June 27, 2008 Newsletter Advertising/Promotions Law News
Winston & Strawn's Advertising/Promotions Law News covers topics of interest to the firm's advertising and consumer product company clients in the areas of advertising challenges and litigation, sweepstakes and promotions, privacy and security, and other relevant legal issues.
June 27, 2008 Briefing Supreme Court Vacates $2.5 Billion Punitive Damages Award Against Exxon
In a much-anticipated decision, the Supreme Court recently vacated a $2.5 billion punitive damages award against Exxon for the 1989 Exxon Valdez oil spill, finding that the award was excessive under federal maritime common law.
June 27, 2008 Briefing Supreme Court's Landmark Decision in the Exxon Valdez Case
This briefing addresses the Supreme Court’s recent landmark decision in the Exxon Valdez case. The Supreme Court’s decision resolves key maritime law questions, but leaves others for another day.
June 24, 2008 Newsletter Privacy and Technology Bulletin
Winston & Strawn's quarterly Privacy and Technology Bulletin provides summaries and tips on recent legal developments in the areas of Web site, workplace, health care and financial privacy, data security, software and technology, and privacy issues that arise in interactive company-to-consumer communications.
May 30, 2008 Newsletter Advertising/Promotions Law News
Winston & Strawn's Advertising/Promotions Law News covers topics of interest to the firm's advertising and consumer product company clients in the areas of advertising challenges and litigation, sweepstakes and promotions, privacy and security, and other relevant legal issues.
May 30, 2008 Briefing Broker-Dealer Registration Update
The Securities and Exchange Commission Division of Trading and Markets (the Division) has updated the Guide to Broker-Dealer Registration, which is available on the SEC web site. The Guide provides a summary of some of the significant provisions of the Securities Exchange Act of 1934 and the rules thereunder that regulate the activities of registered broker-dealers.
May 30, 2008 Briefing The Supreme Court Expands the Scope of Liability for Employers
This week the U.S. Supreme Court issued two employment decisions that expand the ability of employees to bring retaliation claims against employers. In CBOCS West, Inc. v. Humphries, the Court found that an employee of a private employer can bring a retaliation claim under § 1981, while in Gomez-Perez v. Potter, the Court held that the Age Discrimination in Employment Act allows a federal employee to bring a retaliation claim against a federal employer.
May 30, 200 Briefing FTC Approves New CAN-SPAM Rules and Provides Guidance on Refer-A-Friend
The Federal Trade Commission announced earlier this month that it had approved four new rule provisions intended to clarify CAN-SPAM Act requirements.
May 30, 2008 Briefing FTC Signals Increased Enforcement Against Cellular Providers For Marketing
In May 2008, FTC Commissioner John Liebowitz told members at the FTC Forum on Mobile Devices that the FTC intends to step up its enforcement against cellular content providers.
May 30, 2008 Briefing NAD Recommends Advertiser Discontinue Unsupported Claims Regarding Electric Motorcycle
The NAD recently reviewed claims by Brammo Motorsports that the advertiser's motorcycle was the world's first zero-emissions, battery-powered, plug-in, electric motorcycle.
May 30, 2008 Briefing NAD Finds Advertiser's Use of Consumers Testimonials are Unsupported Product Performance Claims
The NAD reviewed claims by The Green Willow Tree, LLC for its dietary supplement, including testimonials from consumers reporting that they felt more energetic, lost weight, were sleeping better, and were no longer depressed after using the supplement.
May 30, 2008 Briefing Court Concludes That E-mails are "Signed Writings" Sufficient to Overcome the Statute of Frauds
Jerry Sunshine, a produce broker, assisted Edward Price, his wife's cousin, in the sale of Price's frozen fruit distributorship. Sunshine thought he was going to be compensated for his work, and receive a finder's fee for locating a purchaser for Price.
May 30, 2008 Briefing ISP Wins $224 Million Default Judgment Against Spammers
The U.S. District Court for the Central District of California recently awarded MySpace, Inc. a default judgment of more than $224 million for violations of the CAN-SPAM Act and California's state anti-phishing law for spamming and phishing on the MySpace network.
May 30, 2008 Briefing Classified Ad Web Site Not Liable for Content of Classified Ads Under the CDA
Online classified advertiser Craigslist.com provides an electronic meeting place for those that want to buy, sell, or rent many types of products and services, including housing.
May 30, 2008 Briefing Texas Company Pays $275,000 for Failure to Properly Destroy Customer Information
Last year the Texas attorney general brought action against Check 'n Go, a payday lending store, for failure to adequately protect or securely destroy sensitive customer information.
May 30, 2008 Briefing Bankinter and Antenvenio Fined with €270,000 for Unlawful Processing of Personal Data of Underage Users in Spain
Bankinter SA and Antenvenio SA were recently fined by the Spanish Data Protection Agency with a total sum of €270,000 for violations of the Spanish Data Protection Act in connection with the unlawful processing of personal data of underage users.
May 30, 2008 Briefing Company Settles Probe Into Sale of Personal Financial Data
Online data broker US Search.com agreed to pay a penalty of $250,000 to settle a New York attorney general investigation into its sale of private consumer information obtained from credit reporting agencies — Equifax, TransUnion, and Experian — and financial institutions.
May 30, 2008 Briefing U.K. Issues Guidance on How to Manage Data Breach
The U.K. Information Commissioner's Office (ICO), which enforces that country's data privacy law, recently released a non-binding guidance on how organizations should manage a data security breach.
April 30, 2008 Briefing Georgia Supreme Court Holds That Payment of a Premium Text Message Entry Fee Does Not Constitute a "Bet"
The Georgia Supreme Court recently held that the Georgia law cited by the plaintiffs in a law suit filed last year against NBC and others in connection with their premium text message games "does not authorize the filing of a civil suit to recover the text message fees."
April 30, 2008 Briefing New Hampshire Liquor Commission Issues Guidance Regarding Rebate Offers
The New Hampshire Liquor Commission recently announced that it voted to prohibit rebate offers that require consumers to remove the label from a bottle of liquor to be submitted with the rebate request due to the fact that the labels are difficult to remove and must be soaked off.
April 30, 2008 Briefing California Tax Board Rules That Retailers Must Pay Taxes on Rebates
On March 18, 2008, the California State Board of Equalization ruled that retailers that purchased cigarettes from third party wholesalers, and received rebates on those cigarettes from the original manufacturer are required to pay taxes on such rebates.
April 30, 2008 Briefing Federal District Court Holds That State Right of Publicity Claim is Not Barred by Communications Decency Act
The U.S. District Court for the District of New Hampshire recently held that a state right of publicity claim against an Internet service provider was not barred by the Communications Decency Act.
April 30 Briefing CDA Immunity Denied Where Content was Added
Bruce Tefft, a New York City Police Department employee, and the NYPD were sued by a counter-terrorism officer that claimed he was a victim of a hostile working environment. Tefft was employed by the NYPD to research and forward articles concerning terrorism to the anti-terrorism department of the NYPD.
April 30, 2008 Briefing Roommate Matching Web Site Not Exempt Under CDA
A roommate-matching Web site was sued by several fair housing organizations for violating the Fair Housing Act and other state laws that prohibit discrimination in housing.
April 30, 2008 Briefing Copying a "Standard Proposal" From a Competitor can be Costly
A complicated case from the federal court in Pennsylvania reminds us that a company's written policies, procedures and standardized proposals or forms can be protected by copyright, and that employees who take such materials with them to a new employer can cause their new employer to be liable for damages for infringement.
April 30, 2008 Briefing Class Certified Against Grocer Who Issued Receipts With Expiration Dates
In yet another recent case brought under the Fair and Accurate Credit Transactions Act (FACT), a judge in Illinois certified a class of potential plaintiffs who allege that Jewel Food Stores Inc. issued credit card receipts that included card expiration dates.
April 30, 2008 Briefing FTC Settles Data Security Violation Case With Reed Elsevier and Seisint
In late March the FTC settled charges brought against Reed Elsevier and Seisint over Seisint's Accurint database (Reed Elsevier acquired Seisint in 2004).
April 30, 2008 Briefing Social Networking Guidance to Protect Children Issued in the UK
In 2001 the United Kingdom launched its Task Force on Child Protection on the Internet, which brings together industry and government representatives to work towards making the Internet safer for children.
April 30, 2008 Briefing Reminder: Unauthorized Commercial Use of Olympic Designations is Prohibited
The unauthorized commercial use of any Olympic trademarks, logos, or symbols, as well as any conduct tending to suggest any connection with the Olympics or the United States Olympic Committee, is prohibited by a federal law enacted in 1998, which granted exclusive rights to the USOC with respect to all Olympic marks.
April 30, 2008 Newsletter Advertising/Promotions Law News
Winston & Strawn's Advertising/Promotions Law News covers topics of interest to the firm's advertising and consumer product company clients in the areas of advertising challenges and litigation, sweepstakes and promotions, privacy and security, and other relevant legal issues.
March 31, 2008 Briefing Class Action Lawsuits Related To Premium Text Message Games Filed Against Wireless Service Providers
Class action lawsuits were recently filed against at least two wireless service providers alleging that the wireless service providers entered into a business relationship with third parties to offer an illegal lottery via a premium charge text message game.
March 31, 2008 Briefing FTC Reminds Businesses of Revised COPPA FAQ on Send-A-Friend and E-Cards
The FTC recently reminded businesses that it modified the response to its "frequently asked question" on e-cards and forward-to-a-friend campaigns, in particular electronic cards with Web sites allow children to send to their friends, or Web sites that allow children to forward to their friends "items of interest on" the site.
March 31, 2008 Briefing FTC Reaches $2.9 Million Settlement Regarding "Free Gift" Offer
Online advertiser ValueClick was alleged by the FTC to have failed to clearly disclose that the "free gifts" it offered in its e-mails and banner and pop-up ads were not, in fact, free.
March 31, 2008 Briefing Public Display of Super Bowl on Movie Theatre Screens Without NFL License Halted
Chunky's Cinema Pub, a movie theatre chain, recently attempted to conduct a promotion where it offered consumers free admission to view the Super Bowl on its big movie screens. While Chunky's did not charge for admission, it likely sought to profit from concessions.
March 31, 2008 Briefing Super Bowl Ad Contest Brings Lawsuit
MyBowlAd was created last year as a concept to sell small pieces of time in a television commercial that would air on during the Super Bowl.
March 31, 2008 Briefing FTC Hosting Town Hall Meetings on Mobile Marketing
On May 6 and 7, 2008, the FTC will host town hall meetings on the practice of mobile marketing. The meetings, called "Beyond Voice: Mapping the Mobile Marketplace," will allow the FTC and participants to look at consumer protection issues in the "rapidly expanding world of M-commerce," as the FTC terms it.
March 31, 2008 Briefing NAD Finds "Best-Engineered" Claim is not Puffery
A claim that a product is "Best-Engineered" is not puffery and instead is a claim which requires substantiation, according to a recent decision of The National Advertising Division (NAD) of the Council of Better Business Bureaus.
March 31, 2008 Briefing NAD Recommends Advertiser Discontinue Claims Based Upon General Industry Research
NAD recently reviewed claims that a product with green tea antioxidants would make short nails grow longer. The advertiser submitted the opinion of an expert, who explained that a large body of research supports the conclusion that the use of green tea will help protect and aid the growth of weak nails.
March 31, 2008 Briefing Settlement Agreement Reached Via E-Mail is Binding
Basis Technology Corporation sued Amazon.com in May 2003, for alleged breach of fiduciary duty, and violations of the state's consumer protection laws.
March 31, 2008 Briefing Appellate Court Holds No Theft of Idea Where No Confidentiality Agreement in Place
American Business Training (ABT) developed and attempted to market a seminar concept for a "5-Day MBA" course for business professionals without graduate business school training.
March 31, 2008 Briefing Man Sues Big Ten Network For Stealing Idea in Breach of Confidentiality Agreement
Robert Welsh, former Penn State athlete and mascot, has filed a suit against the Big Ten and the Big Ten Network. Welsh claims that in 1998 he presented his idea to create a Big Ten television network to the Big Ten Conference, which was required to sign a confidentiality agreement prior to the idea being disclosed.
March 31, 2008 Briefing Virginia Becomes 40th State With Data Breach Notification Law
Effective July 1, 2008, Virginia will become the 40th state with a law requiring companies to notify consumers if personal information has been breached.
March 31, 2008 Briefing Did You Know the Word "WEBISODE" is a Registered Trademark?
The word WEBISODE has been a registered mark with the USPTO since May 6, 2003 for use in connection with "entertainment services such as production of television programs, cartoons, animation, motion picture films, cable television programs, closed caption television programs, videotape, multimedia entertainment software; special effects animation services for film and video; as well as educational services."
March 2008 Newsletter Advertising/Promotions Law News
Winston & Strawn's Advertising/Promotions Law News covers topics of interest to the firm's advertising and consumer product company clients in the areas of advertising challenges and litigation, sweepstakes and promotions, privacy and security, and other relevant legal issues.
March 20, 2008 Newsletter Privacy and Technology Bulletin
Winston & Strawn's quarterly Privacy and Technology Bulletin provides summaries and tips on recent legal developments in the areas of Web site, workplace, health care and financial privacy, data security, software and technology, and privacy issues that arise in interactive company-to-consumer communications.
February 28, 2008 Briefing NAD Finds That Material Terms of a Loyalty Program Must be Prominently Disclosed
The National Advertising Division of the Better Business Bureau recently reviewed advertising for a loyalty program which stated that consumers could get "10% back" on specified products.
February 28, 2008 Briefing Marketers Settle with FTC/Florida AG Over Deceptive Online "Free" Offers
Member Source Media LLC, operator of the web sites consumergain.com, premiumperks.com, freeretailrewards.com and greatamericangiveaways.com recently settled with the FTC over allegations that the company had sent deceptive and misleading emails to consumers.
February 28, 2008 Briefing Online Furniture Retailer Sued by Florida for False Delivery Claims
An online furniture retailer, Elite Purchasing Group, was recently sued by the State of Florida for Deceptive Trade Practices.
February 28, 2008 Briefing Trademark Confusion Can Exist Even if Products Not Identical
Palantir.net brought suit alleging that Palantir Technologies infringed the former's rights in the PALANTIR trademark.  The word "palantir" was not created by plaintiff, but instead by author J. R. R. Tolkien, and was a magical artifact in the Lord of the Rings trilogy
February 28, 2008 Briefing NAD Finds Apples to Oranges Comparison to be Misleading
NAD considered a consumer preference claim by a trash bag manufacturer that 7 out of 10 consumers prefer its ForceFlex bags over "the other leading brand."
February 28, 2008 Briefing Plaintiff Entitled Only to $750 As Opposed to $10 Million in Statutory Damages in Right of Publicly Claim
The Court of Appeal of the State of California held that when using a former employee's name on pre-printed certificates of authenticity, each certificate did not constitute a separate "publication" for purposes of calculating statutory damages.
February 28, 2008 Briefing Second Circuit Rejects Designer's Claim to Pitch Slogan
The Second Circuit recently rejected a design consultant's claim that American Express infringed his trademark rights by using the slogan "My Life, My Card", holding that the design consultant's use of the phrase was not a protectable trademark use. Stephen Goetz' used the phrase "My Life, My Card" to pitch a software service to credit card companies.
February 28, 2008 Briefing Requiring Consumers to Receive Marketing Materials When Making Online Purchase Violates Alberta Law
The Office of the Information and Privacy Commissioner of Alberta brought an action against ticketmaster.ca regarding its information collection practices.
February 2008 Newsletter Advertising/Promotions Law News
Winston & Strawn's Advertising/Promotions Law News covers topics of interest to the firm's advertising and consumer product company clients in the areas of advertising challenges and litigation, sweepstakes and promotions, privacy and security, and other relevant legal issues.
January 24, 2008 Briefing Rebate Processing Companies and Rebate Providers Receive Audit Request
We have learned that a number of rebate processing companies, and advertisers who offer rebates, have recently been subjected to audit requests by the Unclaimed Property Clearinghouse for alleged failure to report un-cashed rebate checks as unclaimed property under state escheat laws.
January 24, 2008 Briefing Contest Sponsor Revokes Winner's Hannah Montana Tickets Due to False Winning Essay
An essay submitted by a six year-old Texas girl and her mother that won the Club Libby Lu, Inc. "Rock Your Holidays Essay Contest" was fake.
January 24, 2008 Briefing Lawsuit Brought Over Alleged Use of Song Without Permission
Detroit-based 1980s rock band, The Romantics, brought a federal lawsuit against Activision Publishing over use of one of the band's songs in its videogame without permission
January 24, 2008 Briefing NAD Recommends that Advertiser Discontinue "Pediatrician Recommended" Claim
The Better Business Bureau's NAD reviewed claims for a children's juice drink (diluted juice), including the claim that the drink was "Pediatrician Recommended."
January 24, 2008 Briefing Copying Excerpts of Copyrighted Book For Use in Court is Fair Use
A federal court in Michigan has ruled that it is permissible to copy excerpts of a book for purposes of a court proceeding. Making three copies of 50 pages of a book's total 244 pages was fair, when one was given to the social worker in a case about the termination of parental rights, one to the attorney general, and one was retained for use in cross-examination of its author.
January 24, 2008 Briefing New York Rejects "Famous Marks” Doctrine Under State Unfair Competition Laws
New Delhi’s famous Bukhara restaurant is owned by India’s ITC Ltd. Some former employees emigrated to New York, where they opened Bukhara Grill.
January 24, 2008 Briefing No Name is Still a Protectible Name
The owner of the trademark NO NAME for steaks successfully sued a manufacturer of a beverage product formerly known as COCAINE in a case decided in federal court in Minnesota in December.
January 24, 2008 Briefing Location, Location, Location: Primarily Geographic Marks Not Registerable
YOSEMITE BEER for beer brewed 80 miles outside of Yosemite national park cannot be federally registered as a trademark, according to the Trademark Trial and Appeal Board.
January 24, 2008 Briefing Famous Mark Diluted by Domain Name: VISA vs. evisa.com
The domain name evisa.com for language schools in Japan diluted the famous trademark, VISA for credit card services, according to a federal court in Nevada.
January 24, 2008 Briefing Rights in Trademark Not Limited to Goods Listed in Registration
An entity that registered the mark SMARTSEARCH for computer software that allows users to retrieve information from on-line services alleged that another party had infringed its mark by using the term as an online link to take users to information about methods for conducting online searches.
January 24, 2008 Briefing Store Brand Name and Logo Can Distinguish Imitative Trade Dress
Whether any given trade dress infringes another is dependent on a number of factors (commonly known as the Lapp factors), but ultimately the determination must be made on the overall commercial impression created by the allegedly infringing package.
January 24, 2008 Briefing Online Retailer Settles with FTC Over Allegedly Deceptive Security Representations
Life is good, Inc. owns and operates a Web site at which it sells apparel and related accessories. As part of the sale of its goods, the company collects customers names, addresses, credit card numbers, expiration dates, and credit card security codes. In its privacy policy, Life is good states that information collected is "kept in a secure file."
January 24, 2008 Briefing FTC Seeking Comment on Privacy Guidelines for Behavioral Advertising
The FTC has issued proposed privacy guidelines for those engaged in online behavioral advertising – the practice of tracking a Web site user's online habits in order to understand the user and target advertising to his or her interests.
January 24, 2008 Briefing MySpace, State AGs Enter Into Agreement to Increase Online Safety for Children
Forty-nine state attorneys general – with Texas as the lone state holdout – announced on January 14 that they had reached an agreement over online child safety on the popular social networking Web site.
January 24, 2008 Newsletter Advertising/Promotions Law News
Winston & Strawn's Advertising/Promotions Law News covers topics of interest to the firm's advertising and consumer product company clients in the areas of advertising challenges and litigation, sweepstakes and promotions, privacy and security, and other relevant legal issues.
December 21, 2007 Briefing Court Holds Illegal Lottery Claim Properly Alleged In Text Messaging Promotions
The Central District of California recently published a decision in the class action lawsuits challenging the premium text message sweepstakes run in connection with Deal or No Deal, 1 vs. 100, and The Apprentice.
December 21, 2007 Briefing Connecticut Gift Card Law Held Not To Violate the Commerce Clause
A federal court recently held that Connecticut’s gift card law does not violate the commerce clause.
December 21, 2007 Briefing CARU Recommends Modification to Sweepstakes Advertisement
Through routine monitoring of advertising directed to children, the Children's Advertising Review Unit found print advertising for a sweepstakes marketed by The Upper Deck Company in Sports Illustrated Kids’ September issue.
December 21, 2007 Briefing California Amends Gift Card Law
California recently amended its gift card law to require that any gift certificate with a cash value of less than $10 be redeemable in cash for its full cash value. This amendment takes effect January 1, 2008.
December 21, 2007 Briefing Placing Photo Hyperlink on Public Web Site Is Not Misappropriation
A federal court in South Carolina recently held that the act of including a hyperlink to a photo on a publicly-accessible Web site does not constitute misappropriation of the photo.
December 21, 2007 Briefing Wireless Company Settles with NYAG Over "Unlimited" Internet Service Claims
A major wireless carrier has agreed to stop claiming in future advertising that two of its wireless Internet service plans are "unlimited." The New York Attorney General alleged that the carrier failed to disclose "hidden limitations," specifically that downloading movies or playing games online was excluded from the packages.
December 21, 2007 Briefing Australian Court Rules Telstra's Ads Claiming Global Cellular Coverage Misleading
In December 2007, the Australian Federal Court ruled that Telstra's ads for its Next G cellular network featuring the tagline "Coverage Everywhere You Need It" were deceptive.
December 21, 2007 Briefing Florida Targets Online Ad Distributors
Florida has created a new task force to deal with Internet-related fraud, called the CyberFraud Task Force. The group is part of the Florida Attorney General's Economic Crimes Division.
December 21, 2007 Briefing FTC Offers Tips to Mobile Ad Marketers
Lydia Parnes, director of the Federal Trade Commission's (FTC) Bureau of Consumer Protection, cautioned recently that mobile marketers sending text message advertisements should do so responsibly and legally, should create industry self-regulation, and should advertise within the limits of consumer tolerance in order to avoid federal action.
December 21, 2007 Briefing NAD Reviews "Up To" Savings Claim
The National Advertising Division of the Better Business Bureau (NAD) recently reviewed advertising by Santech Industries for its Hydro-Sil heating systems in which the advertiser claimed that its heating system "greatly increases energy savings" and that "Families Have Saved up to 50 percent on Heating Costs."
December 21, 2007 Briefing NAD Reviews Claims for Dietary Supplement
The National Advertising Division of the Better Business Bureaus (NAD) recently reviewed advertising by Bodyhealth.com, Inc. for its Metal-Free dietary supplement.
December 21, 2007 Briefing FTC Launches Do-Not-Call Sweep: Obtains Over $7 Million In Penalties
A recent enforcement effort looking for violations of the National Do Not Call Registry (DNC Registry) resulted in six settlements that collectively brought the FTC almost $7.7 million in civil penalties.
December 21, 2007 Briefing CARU Announces Hannah Montana Fan Site Making COPPA Changes
In a recent announcement, CARU indicated IMM Studio has taken steps to modify its Web sites (mileyworld.com and mileycyrus.com) to assure that it has verifiable parental consent and has provided parental notification before collecting personal information from children under the age of 13 online.
December 21, 2007 Briefing CARU Refers Singer Fan Site to FTC
In a similar case, CARU announced that it is referring WUK Music Group's daechelle.com, a fan site for the singer Daechelle, to the FTC. CARU found in its investigations that the WUK Web site collected personal information and asked children for their ages without obtaining verifiable parental consent.
December 21, 2007 Briefing Texas AG Files COPPA Suits Against The Doll Palace and Future US
Texas has become the first state to bring a lawsuit under COPPA, as permitted by 15 U.S.C. § 6504. Under COPPA, a state bringing action must first give notice to the FTC, which has the right to intervene in such an action.
December 21, 2007 Briefing SEC Adopts Significant Changes to Rules 144 and 145
The Securities and Exchange Commission has adopted significant amendments to Rules 144 and 145 under the Securities Act of 1933, as amended, which become effective on February 15, 2008.
December 21, 2007 Newsletter Advertising/Promotions Law News
Winston & Strawn's Advertising/Promotions Law News covers topics of interest to the firm's advertising and consumer product company clients in the areas of advertising challenges and litigation, sweepstakes and promotions, privacy and security, and other relevant legal issues.
December 21, 2007 Briefing Congress Boosts Short Sea Shipping
One of the first bills introduced in the House of Representatives following the 2006 Congressional elections was an energy bill, H.R. 6. That bill finally passed Congress at the end of this Congressional session and was signed by President Bush into law on December 19, 2007.
December 19, 2007 Newsletter Privacy and Technology Bulletin
Winston & Strawn's quarterly Privacy and Technology Bulletin provides summaries and tips on recent legal developments in the areas of Web site, workplace, health care and financial privacy, data security, software and technology, and privacy issues that arise in interactive company-to-consumer communications.
October 31, 2007 Briefing Fantasy Sports Leagues Not Considered Gambling
A federal court recently held that certain fantasy sports games played for pay and run by major sports web sites do not constitute illegal gambling.
October 31, 2007 Briefing Promotions Agency Files for Declaratory Judgment Regarding Anticipated Promotions Patent Lawsuit
ePrize, a provider of Internet-based interactive promotions, recently filed suit against Applied Interact, LLC, requesting declaratory relief with respect to an anticipated patent infringement suit to be filed by Applied Interact.
October 31, 2007 Briefing Leading Media And Internet Companies Establish Copyright Principles For User-Generated Content
On October 18, 2007, a group of leading commercial copyright owners and Internet service providers announced the establishment of a set of principles regarding user-generated audio and video content.
October 31, 200 Briefing Fantasy Sports Provider Wins Right to Use Player Names and Statistics
 A federal court of appeals recently held that a fantasy sports operator could use the names and statistics of players to operate a pay-to-play fantasy sports league.
October 31, 2007 Briefing JPC Files Arbitration Against SAG on Pension and Health Issue
The ANA-AAAA Joint Policy Committee on Broadcast Talent Relations recently filed an arbitration request against the Screen Actors Guild with respect to the SAG Producers Pension and Health Funds' issuance of new Multi-Service Commercial Allocation Guidelines, which was an attempt to increase the basis for which pension and health contributions is made by advertisers to SAG.
October 31, 2007 Briefing Wham-O Awarded $6 Million for Infringement of its Trademark Rights in Color Yellow
Slip 'N Slide manufacturer, Wham-O Inc., was recently awarded $6 million by a jury, which found that rival ToyQuest willfully infringed its federally registered trademark for the color of its water slides.
October 31, 2007 Briefing Australian Advertiser Sued For Use Of Photo From Online Photo Sharing Web Site
A family in the United States filed suit against an Australian advertiser over an advertising campaign featuring a photo of the family's teenage daughter. The suit alleges that the advertiser or its agency obtained a copy the photo from the online photo sharing Web site, Flickr, but failed to get permission to use the girl's image.
October 31, 200 Briefing Copyright Deposits May Not Be Constructed from Memory
In October, the First Circuit ruled that the deposit requirement for copyright registration must reference the original work; a re-creation from memory is not sufficient.
October 31, 2007 Briefing Gardens May Be Protected by Copyright or VARA
In an action brought by an artist against the Chicago Park District, the Northern District of Illinois recently allowed the issue of whether a plaintiff's wildflower display can be considered a protected visual work to proceed to trial.
October 31, 2007 Briefing Social Networking Site Settles With NYAG Over Online Child Safety
A month after the New York Attorney General's office subpoenaed Facebook, an online social networking Web site, it reached a settlement with the company regarding Facebook's safety standards with respect to children.
October 31, 2007 Briefing FTC To Host Identity Theft Workshop
The FTC will host a public workshop December 10 and 11 in Washington, D.C. regarding private sector use of social security numbers, and the use of those numbers to commit identity theft
October 31, 2007 Briefing How to Investigate Employee Activities Within the Company Under French Labor Law (Essentials of E-Discovery and E-Monitoring in France)
Companies with employees in France should pay attention to the recent evolution of French Labor law and, specifically, case law.
October 31, 2007 Newsletter Advertising and Promotions Law News
Winston & Strawn's Advertising/Promotions Law News covers topics of interest to the firm's advertising and consumer product company clients in the areas of advertising challenges and litigation, sweepstakes and promotions, privacy and security, and other relevant legal issues.
October 2, 2007 Newsletter Privacy and Technology Bulletin
Winston & Strawn's quarterly Privacy and Technology Bulletin provides summaries and tips on recent legal developments in the areas of Web site, workplace, health care and financial privacy, data security, software and technology, and privacy issues that arise in interactive company-to-consumer communications.
September 2007 Briefing Radio Station Pays Out After DJ Jokes About Offering $1,000 Prize
A radio DJ at a Chicago area radio station jokingly offered $1,000 to the first listener who could identify the name of the writer of a song he had just played.
September 2007 Briefing Federal Court Holds Promotional Text Message Was Not Subject to Telephone Consumer Protection Act
The Federal Court for the Northern District of California recently dismissed claims against two defendants alleging that the defendants had violated the Telephone Consumer Protection Act's (TCPA) prohibition against using an "automatic telephone dialing system" to place calls to a wireless phone
September, 2007 Briefing Screen Actors Guild Attempts to Unilaterally Issue "Guidelines" Regarding Allocation of Services in a Multi-Service Talent's Contract
On July 23, 2007, the Screen Actors Guild Producers Pension and Health Plans issued "Multi-Service Commercial Allocation Guideline.
September 2007 Briefing Comparative Advertising Claims of Superior HD Picture Quality By Satellite Carrier Found to be Puffery
In late 2006 DIRECTV launched an advertising campaign in which it claimed that its satellite high-definition picture quality was superior to the high-definition picture quality of its cable competitors.  
September 2007 Briefing Sale of The Andy Griffith Show Episodes in Public Domain Violates Copyright in Underlying Work
In March 2006, CBS Operations Inc., which had acquired the rights to all but 16 of the 249 episodes of The Andy Griffith Show, brought suit against Reel Funds International Inc., which was selling and distributing copies of the 16 shows to which CBS had not acquired rights.  
September 2007 Briefing Humorous Hamburger Ads Allowed to Continue
A California federal court recently declined to preliminarily enjoin Jack in the Box television commercials involving a comparison of its sirloin burgers.  
September 2007 Briefing Tasteless Advertising Not Necessarily Illegal
The Connecticut Department of Consumer Protection ruled that ADT Security Services engaged in false advertising by leaving pamphlets entitled "A Sign of the Times" in a community in which three family members were killed in a recent home invasion.
September 2007 Briefing Court Finds Copyright Infringement in Republication of Photo by News Source
A lawsuit was brought against the local Boston CBS station by photographer Christopher Fitzgerald, who took the only known pictures of a well-known mobster's (Stephen Flemmi) arrest in 1995 and licensed their one-time use to CBS.
September 2007 Briefing Ninth Circuit Finds Parties to Online Contract Not Bound by Later Modifications
Talk America, a long-distance telephone service, made changes to its service contract, including adding additional charges, a class action waiver, an arbitration clause, and a New York choice-of-law provision.
September 2007 Briefing Data Disposal Case Settles in Hawaii with Payment of $10,000
Fidelity Escrow Services Corp. settled a data disposal suit this July.  The settlement resolves a case filed by the Hawaii state Department of Commerce & Consumer Affairs against the mortgage escrow company in March.
September 2007 Briefing The CNIL Specifies the New Regulations on Data Subjects' Rights
On July 2, the French Data Protection Authority (CNIL) published instructions clarifying new legal obligations for database operators.
September 2007 Newsletter Advertising and Promotions Law News
Winston & Strawn's Advertising/Promotions Law News covers topics of interest to the firm's advertising and consumer product company clients in the areas of advertising challenges and litigation, sweepstakes and promotions, privacy and security, and other relevant legal issues.
August 7, 2007 Briefing New Rebate Laws Enacted
Texas' rebate law, which becomes effective September 1, 2007, requires a company offering a rebate to mail the consumer the amount of the rebate within the time period promised in the offer.
August 7, 2007 Briefing Court Declines to Dismiss False Advertising Claim for Gift Cards Given As "Rebates"
A California federal court declined to dismiss charges against a large cellular provider for claims of misleading rebate advertising.
August 7, 2007 Briefing Quebec Superior Court Finds TIME Magazine Sweepstakes Deceptive
Jean-Marc Richard received a sweepstakes/magazine subscription solicitation from TIME magazine that used capital letters and large, boldface type to suggest that Richard had won $833,337. "You probably thought it could never happen to you!" the letter read in part.
August 7, 2007 Briefing City Cancels Children's Eating Contest
The Taipei City Government recently canceled scheduled pork rice eating contests for children after being criticized by health advocates for exploiting children for publicity purposes.
August 7, 2007 Briefing No "Free Method of Entry" Needed for Sweepstakes in United Kingdom (Excluding Northern Ireland)
A law was recently passed in the United Kingdom providing that it would be possible to link entry to a "sweepstakes" to the purchase of products or services, provided that there was no increase in the prices of those goods or services.
August 7, 2007 Briefing Forum Selection Clause Limiting Right to Class Action Declared Unenforceable
The Washington Supreme Court recently held that a forum selection clause that prevented class actions lawsuits to be brought against America Online was unenforceable.
August 7, 2007 Briefing Internet Providers Settle Advertising Dispute
One of the country's largest telecom providers has agreed to stop running comparative advertising claiming that 72 percent of Internet users said that its DSL network was as fast or faster than a leading cable broadband Internet service.
August 7, 2007 Briefing Coca-Cola Files Criminal Complaint Against Competitor in Argentina
The Coca-Cola Company filed a criminal complaint in Argentina against two unnamed executives of a competing bottled water company, accusing the executives of orchestrating an Internet-based smear campaign against Coca-Cola's Dasani brand bottled water.
August 7, 2007 Briefing Professional Sports League Constitutes a Single Entity for Purposes of Antitrust Conspiracy Law
In 2000, NFL Properties entered into a 12-year exclusive relationship with Reebok. As part of that deal, the League agreed that all on-field apparel would be Reebok-branded.
August 7, 2007 Briefing Vermont One of Many States with SSN Protection Laws
The Vermont Attorney General recently issued a guidance to businesses on the use of social security numbers under the state's law regarding the protection of personal information.
August 7, 2007 Briefing Marketers to Pay Over $1 Million in Penalties for Selling Consumer Data
 Eight online marketing companies — Consumer Digital Services, Privasafe, JSE Direct, SurfSafe Internet Services, Leverage-CDS, CDS Family Trust, AMP-CDS, and JG-CDS — and Gary Salmirs (Leverage-CDS manager) were sued by the state of Washington for violating the state Consumer Protection Act.
August 7, 2007 Briefing Minnesota First to Enact Breach Law Making Retailers Liable to Banks for Breach Costs
On May 21, Minnesota became the first state to include in its data breach notification law requirements that retailers restrict the amount of time they maintain credit card transaction data.
August 7, 2007 Briefing Protective Measures for the Processing of Customers' Personal Information
After two companies failed to meet the requirements of the U.K. Data Protection Act 1988, the U.K. Office of the Information Commissioner threatened with further enforcement action and prosecution.
August 7, 2007 Newsletter Advertising/Promotions Law News
Winston & Strawn's Advertising/Promotions Law News covers topics of interest to the firm's advertising and consumer product company clients in the areas of advertising challenges and litigation, sweepstakes and promotions, privacy and security, and other relevant legal issues.
July 2, 2007 Briefing New York Passes Online Shopping Law
A New York law was recently enacted that affords online consumers the same protections as those who make purchases over the phone or through the mail.
July 2, 2007 Briefing Fraud Derails Stock-Picking Contests
CNBC conducted a stock-picking contest where the player with the most valuable portfolio at the end of 10 weeks would win $1 million.
July 2, 2007 Briefing Consumer-Generated Contest Results in Consumer Uproar
The New York Times recently reported that a controversy arose with respect to the award of the winner in a Malibu Caribbean Rum user-generated advertising contest.
July 2, 2007 Briefing Iowa Attorney General Investigating Potential Sweepstakes Fraud
Iowa Attorney General Tom Miller recently issued a warning to seniors in Iowa to be skeptical of sweepstakes mail suggesting that they are close to winning a major sweepstakes prize.
July 2, 2007 Briefing FTC Settles Alleged Rebate-Fulfillment Violations with InPhonic and Soyo
The FTC recently announced settlements in two separate cases where it had alleged that companies had engaged in unfair practices by failing to provide rebates to many consumers.
July 2, 2007 Briefing Federal Court Declines to Dismiss Case Regarding Membership Program
The federal district court for the Northern District of Illinois declined to dismiss claims against a major national mortgage company and one of the nation's largest retailers in which the plaintiff alleged the defendants violated the Illinois Consumer Fraud and Deceptive Business Practices Act by failing to disclose clearly and conspicuously the terms of the membership program.
July 2, 2007 Briefing Advertising Concept of Ringing Cell Phone Interrupting Movie-Goers Held Not Protectable
Anyone who has been to a movie in the past five years is familiar with the commercial concept shown before the movie starts where a ringing cell phone interrupts the trailers and ends with a request for the audience to turn off their cell phones before the movie starts.
July 2, 2007 Briefing Court Finds Single Act of Copyright Infringement Where Infringing Photo Was Distributed Numerous Times
On September 11, 2001, Valencia McClatchey took a photograph of the mushroom cloud caused by the crash of United Fight 93. Although she obtained copyright of the image, the Associated Press allegedly distributed the image though its PhotoStream service to various AP members.
July 2, 2007 Briefing Copyright Infringement Found by Agency for Use of Photo for Self-Promotion on Web Site After Term of License
A professional photographer, licensed one of his copyright photographers of Arnold Palmer to an agency, DVC Worldwide, Inc., and its client GlaxoSmithKline, for advertising purposes for a smoking-cessation campaign in 2001 and 2002.
July 2, 2007 Briefing Purchase of Another Company's Trademark as a Keyword Held Not to Infringe
Peachtree Settlement Funding purchased J.G. Wentworth's name as a "keyword" under an advertising program offered by an Internet search engine. When an Internet user conducted a search using "J.G. Wentworth," Peachtree's Web site appeared in a list of search results.
July 2, 2007 Briefing 12th BEAR Likely to Cause Confusion with Chicago Bears
The Chicago Bears Football Club successfully opposed the registration by a novelty manufacturer of the mark "12th BEAR" for jewelry, bumper stickers, insulated beverage containers, towels, clothing, and other novelty items in a case before the Trademark Trial and Appeal Board.
July 2, 2007 Briefing Ninth Circuit Rules "Disinfectable" Not Able to Function as Trademark
In response to state laws requiring nail technicians to disinfect reusable nail equipment, manufacturer Rudolph International, Inc. created a line of products it called "disinfectable" (which it used on packaging along with the established product name).
July 2, 2007 Briefing Responding to an Online Solicitation Does Not Create a Contract
The American Association for the Advancement of Science's online magazine, ScienceNOW, posted a request for "news tips" from users.
July 2, 2007 Briefing French Supermarket Chain Fined $2.5 Million for False Advertising
A French supermarket chain, Carrefour, the world's second biggest retailer after Wal-Mart, received a $2.5 million fine by a French court.
July 2, 2007 Briefing Florida Appeals Court Holds State Laws Restricting Telemarketing Not Preempted by Federal TCPA
On April 20, 2007, a Florida state appellate judge held that Florida's restrictive telemarketing laws were not preempted by the federal Telephone Consumer Protection Act. The case involved marketer TSA, and two state statutes were under scrutiny.
July 2, 2007 Briefing Progress Made in E.U. for Use of Binding Corporate Rules
Just a few months after the European Union Data Commissioners released a standard application form for the approval of Binding Corporate Rules.
July 2, 2007 Briefing Lawsuits Filed to Enforce Federal Consumer Privacy Law
A series of lawsuits have recently been filed against major retailers, including Toys "R" Us, IKEA, and two major rental car companies, alleging violations of the Fair and Accurate Credit Transactions Act.
July 2, 2007 Newsletter Advertising/Promotion Law News
Winston & Strawn's Advertising/Promotions Law News covers topics of interest to the firm's advertising and consumer product company clients in the areas of advertising challenges and litigation, sweepstakes and promotions, privacy and security, and other relevant legal issues.
June 15, 2007 Newsletter Privacy and Technology Bulletin
Winston & Strawn's quarterly Privacy and Technology Bulletin provides summaries and tips on recent legal developments in the areas of Web site, workplace, health care and financial privacy, data security, software and technology, and privacy issues that arise in interactive company-to-consumer communications.
April 30, 2007 Briefing FTC Settles Second Deceptive Gift Card Sales Case
Following closely on the heels of the Federal Trade Commission's (FTC) first case regarding the need for adequate disclosures when selling gift cards with dormancy fees, the FTC has now brought a case against Darden Restaurants, owner of the Olive Garden, Red Lobster, Smokey Bones, and Bahama Breeze restaurant chains.
April 30, 2007 Briefing “Free Medicine” Service Found Deceptive
MyFreeMedicine.com provided a “service” informing uninsured consumers of ways they could obtain prescription drugs free or at a discount.
April 30, 2007 Briefing NFL Player Fined by League for Alleged "Ambush Marketing"
The National Football League recently fined Chicago Bears player Brian Urlacher $100,000 for appearing at a hour-long Super Bowl media day interview with a bottle of Vitaminwater®, and wearing a Vitaminwater-logo cap.
April 30, 2007 Briefing Nondisclosure of Foreign Origin of Goods Per Se Lanham Act Violation
In March 2007, a Washington District Court held that failure to mark imported goods with their country of origin is a per se violation of 43(a) of the Lanham Act.
April 30, 2007 Briefing Court Holds Celebrity Endorser Entitled to Claim After Company Files Bankruptcy
In February 2007, the Southern District of New York Bankruptcy Court held that a celebrity endorser was not an "employee" of the company and therefore was entitled to proceed with his claim for damages when the company failed to pay after filing bankruptcy.
April 30, 2007 Briefing Knowledge and Unauthorized Public Performance of Copyrighted Music Results in Severe Penalties
EMI Mills Music, Inc., Universal-Polygram International Publishing, Inc., Dreamworks Songs, Billy Strayhorn Songs, Inc., and Universal Studios, Inc. recently sued the Empress Hotel, Inc. and Carl Palermo, its president and treasurer, for copyright infringement for the unauthorized public performance of four songs in the hotel.
April 30, 2007 Briefing Utah Enacts Law Prohibiting Online Keyword Advertising Triggered by Registered Marks
In March, Utah amended its Trademark Protection Act to establish a new type cause of action for infringement of "electronic registration marks."
April 30, 2007 Briefing Failure to Shred Documents Violation of Texas Law
RadioShack was sued this month by the Texas Attorney General for improper disposal of documents containing confidential consumer data by one of its stores located in Portland, Texas.
April 30, 2007 Briefing $4.5 Million Jury Verdict Upheld for Deceptive Online Consents
Last August we reported on a case brought in Oregon by CollegeNET against its competitor, XAP, for allegedly deceptive online consent language.
April 30, 2007 Briefing Vicarious CAN-SPAM Liability a Possibility for Affiliate-Sent E-mails
In February of this year we reported on an FTC settlement with TJ Web, where the FTC found TJ Web to be the "initiator" of its affiliates advertising messages, as that term is defined under CAN-SPAM.
April 30, 2007 Briefing Titles and Degrees Not Registrable as Marks with Patent and Trademark Office
In a decision reached in late March 2007, the Trademark Trial and Appeal Board found that the term CRNA for Certified Registered Nurse Anesthetist was not registrable as a certification mark.
April 2007 Newsletter Advertising/Promotions Law News
Winston & Strawn's Advertising/Promotions Law News covers topics of interest to the firm's advertising and consumer product company clients in the areas of advertising challenges and litigation, sweepstakes and promotions, privacy and security, and other relevant legal issues.
March 2007 Briefing NFL Applies for Trademark BIG GAME; Butts Heads with Universities and Advertisers
The National Football League has applied to register the trademark BIG GAME with the United States Patent and Trademark Office, in an effort to block advertisers from successfully referring to the Super Bowl without actually using the registered trademark phrase SUPER BOWL.
March 2007 Briefing Gift Card Sales Practices Found Deceptive
Kmart, which included in its advertising claims that its gift cards are like cash and that the cards "never expire," recently found itself subject to a complaint by the Federal Trade Commission charging that these advertising practices were deceptive.
March 2007 Briefing "First Negotiation" Contract Term Breached
A federal court in New York has ruled that FIFA breached its contractual obligation to give MasterCard the first right to sponsor post-2006 World Cup soccer games.
March 2007 Briefing Calloway Sues the Screen Actors Guild; Looking for a Declaration That It Owes No P&W
Calloway Golf has endorsement agreements with several professional golfers, whereby the golfers appear in television advertisements for Calloway.
March 2007 Briefing Non-Commercial Portions of Otherwise Commercial Web Site Protected By First Amendment
A federal court recently ruled that the Atkins diet book and web site, which contained advertisements for the Atkins diet and related products, as well as general information on the Atkins diet and healthy living, were protected speech under the First Amendment.
March 2007 Briefing Neither Notice Nor Delay in Removing Content Are Bars to CDA Web Site Third-Party Content Immunity Defense
In granting a defendant’s Motion to Dismiss, the Eastern District of Michigan held in February that the mere fact that a web site operator had received notice that defamatory statements were on its servers was not enough to strip a defendant of its Communications Decency Act (CDA) Section 230 immunity defense, which states "[n]o provider or user of an interactive service shall be treated as the publisher or speaker of any information provided by another information content provider."
March 2007 Briefing CDA Provides Immunity for Actions Stemming from Illegal Third-Party Content
In February 2007, the Western District of Texas found that MySpace Inc. was immune under the Communication Decency Act (“CDA”) from injuries stemming from content posted to its site.
March 2007 Briefing Automatic Copying of Web Site May Bind User to Online Terms
In a case brought before the District Court for the District of Colorado, Internet Archive was accused of having breached profane-justice.org's online terms.
March 2007 Briefing Can't Frisk Event Patrons Without "Substantial and Real Risk"
The Tampa Sports Authority, a public agency created by the Florida legislature, may not implement mass, suspicionless patdowns for NFL games at Raymond James Stadium, according to the Federal Court in Tampa.
March 2007 Briefing Failure to Disclose Security Ramifications on Downloadable Software Costs Company $1.5 Million
The FTC announced in late February that DirectRevenue will pay $1.5 million in civil penalties to settle deceptive trade practice charges brought by the Commission regarding DirectRevenue's automatic download of software that monitored consumers' web habits.
February 2007 Briefing Text Message Sweepstakes With "Premium" Charges Brings Class Action Lawsuit
A sweepstakes ("Sweepstakes") text message promotion was recently offered in connection with the television program The Apprentice whereby viewers had the opportunity to "Get Rich With Trump."
February 2007 Briefing Illinois AG Files First Cell Phone Spam Case
Lisa Madigan, the Illinois Attorney General, has brought suit against C & C Global Enterprises LLC, a Florida-based resort properties corporation.
February 2007 Briefing Internet Marketer Settles With FTC For Messages Sent by Affiliates
Under the CAN-SPAM Act, companies that send e-mail messages that contain sexually explicit material must put the phrase "SEXUALLY EXPLICIT" in the subject line, and must also ensure that the message area that is immediately viewable contains no sexually graphic images.
February 2007 Briefing American Express Sued in Class Action for Gift Cards "Good All Over the Place"
A class action was recently filed against American Express Travel Related Services in connection with the sale of its gift cards.
February 2007 Briefing Company Agrees to Pay $440,000 To Reimburse Consumers for Gift Cards
Simon Property Group, one of the largest shopping mall management companies in the nation, was sued by various states for violating state Consumer Protection Acts because Simon included expiration dates and fees that reduced the value of their gift cards over time.
February 2007 Briefing DirecTV Ordered to Cease Airing Allegedly Deceptive Television Commercials
The U.S. District Court for the Southern District of New York issued a preliminary injunction prohibiting DirecTV from continuing to air two commercials comparing the quality of DirecTV to cable.
February 2007 Briefing Real Estate Agent Ordered to Discontinue Use of Domain Names Containing Competitor's Trademark
The U.S. District Court for the Southern District of Ohio ordered a real estate agent operating a web site about his former employer, a competing real estate agency, to discontinue use of the domain name.
February 2007 Briefing Distributing Multiple Copies Under Single-User Subscription May Constitute Both Copyright Infringement and Computer Fraud
NBTY, Inc., a nutritional-supplement company, purchased a license from Therapeutic Research Faculty, a company providing drug therapy information and advice, which also owns and operates a database containing drug therapy information.
February 2007 Briefing Parody of Trademark Found Permissible
"Chewey Vuiton", as applied to plush stuffed toys and beds for dogs, is an obvious and permissible parody of Louis Vuitton, according to a Federal Court in Virginia, and does not constitute trademark infringement, dilution, or copyright infringement.
February 2007 Briefing First Class Action Settlement in Cell Phone Spam Case
Distributive Networks LLC, a wireless content and technology company, was sued by a class of approximately 1,000 consumers who allegedly received unwanted text messages encouraging the consumers to subscribe to Distributive's services.
February 2007 Briefing Biometrics: French Officials Warning
The French Data Protection Authority (CNIL), in an official statement dated January 5, 2007, underlined the need to request prior authorization for each and any planned use of biometric technology in computerized identity control system.
February 2007 Briefing Italy: A New Regulation Relative to Data Retention
On February 6, Italy's Council of Ministers issued a new decree (Decree 21A-2007) to specifically regulate the duration of personal digital data retention, mostly when they are indirectly collected (e.g., electronic images recorded by surveillance cameras or digital data collected by retailers).
January 30, 2007 Briefing Private Litigants in Virginia Can’t Enjoin Allegedly False Advertising
The Eastern District of Virginia recently held that private litigants suing “on behalf of the public” cannot obtain injunctive relief under Virginia’s consumer protection and false advertising laws.
December 22, 2006 Briefing Washington Attorney General Reaches Settlement with LA Weight Centers and NWM for Rebate Scheme
Washington state recently settled with two weight loss companies accused of false advertising related to the cost of their programs.
December 22, 2006 Briefing Florida Imposes Emergency Assessment of One Percent on All Bond Premiums
Effective January 1, 2007, the Florida Office of Insurance Regulations will begin charging a one percent fee on all bond premiums, including bonds for sweepstakes offered in the state of Florida.
December 22, 2006 Briefing California Rules Direct Mail Campaign to Sell Online Ad Space Deceptive
YP.com, a Nevada company, operates an online Yellow Pages directory. As part of a campaign to sell advertising space in its online directory, YP.com sent potential advertisers activation checks for small amounts (under $4), made payable to the recipient.
December 22, 2006 Briefing Allegations Regarding Deceptive Membership Program Advertising Settled
Trilegiant Corporation and Chase Bank USA recently reached agreement with Attorneys General in 16 states, resolving allegations that the companies deceived consumers into signing up for membership programs that supposedly offered discounts on goods and services for a monthly fee.
December 22, 2006 Briefing FTC Responds to Commercial Alert on Word of Mouth Marketing
Late last year, Commercial Alert requested that the FTC investigate the practice of sponsored “buzz marketing,” the latest tool in the marketer’s arsenal.
December 22, 2006 Briefing Universal Sues MySpace for Copyright Infringement
In November, Universal Music Group filed a copyright infringement lawsuit in the Central District of California against the popular networking web site MySpace, alleging that the site is “a willing partner” in theft of user-generated content that is actually the intellectual property of others.
December 22, 2006 Briefing CARU Revises Self-Regulatory Guidelines for Children’s Advertising
The Children’s Advertising Review Unit (CARU) published a revised set of Self-Regulatory Guidelines for Children's Advertising in November 2006.
December 22, 2006 Briefing Court Rules Sega Did Not Misappropriate Deee-Lite Singer’s Likeness
Sega Corporation successfully established that its character Ulala, featured in the game “Space Channel 5,” did not misappropriate the identity of the musical group Deee-Lite’s lead singer Kierin Kirby, in particular Ms. Kirby’s stage persona Lady Miss Kier.
December 22, 2006 Briefing SFX Protects its Webcast, Successfully Stops Unauthorized Streaming
The Northern District of Texas held this month that SFX Motor Sports Inc. could prohibit a third party from providing an online stream of SFX’s produced and promoted motorcycle racing event webcasts. SFX brought suit alleging both trademark and copyright infringement.
December 22, 2006 Briefing Quarterback Sues for Yahoo’s Use of Image in Fantasy Game Ads
New England Patriots quarterback Tom Brady has filed a lawsuit against Yahoo for the use of his photo in advertisements for Yahoo’s popular online Fantasy Football Game, which according to the complaint boasted 4.4 million users last year. Some of the ads ran as online banners at yahoo.com.
December 2006 Briefing Policing Copyrighted Content on the Web
We’ve been impressed lately with YouTube’s willingness to cooperate with product manufacturers who feel that their products are being disparaged or mis-portrayed in videoclips.
December 22, 2006 Briefing CARU Refers 1 Chat Avenue to FTC for Alleged COPPA Violation; Kickit3v3.com Agrees to Implement Age Screen Mechanism on General Interest Web Site
In a recent decision, CARU referred 1 Chat Avenue, the operator of two chat sites that included free chat rooms for children, to the FTC.
December 22, 2006 Briefing CollegeNET Nets $4.5 Million Jury Verdict in Suit Over Competitor’s False Privacy “Opt-In” Language
As we reported in August, CollegeNET an online college application service, brought suit under the Lanham Act for unfair competition against its competitor, XAP, over the latter’s online opt-in language.
December 22, 2006 Briefing FTC Data Security Claim for Failure to Protect Credit Card Data Settled
Guidance Software, which sells computer breach investigation software and training materials, agreed late last month to settle FTC charges that Guidance had failed to implement measures to protect consumers’ credit card data against reasonably foreseeable web-based hacking attacks.
December 22, 2006 Briefing German Court Finds Web Site Operator’s Privacy Disclosures Inadequate
In a ruling released in late November, the Bonn District Court ruled against a web site operator for its failure to make privacy disclosures clear.
November 29, 2006 Briefing French Data Protection Authority Levies First Fines
Based on new financial sanction powers granted by a 2004 reform of the French privacy legislation of January 6, 1978, the French data protection authority, the Commission Nationale de l’Informatique et des Libertés announced on June 28, 2006, its first-ever fine, amounting to EUR 45,000 (U.S. $57,556) against Crédit Lyonnais.
November 29, 2006 Briefing Action Against an Online Notaries Blacklist by the French Data Protection Authority
In 2004, CNIL introduced an action against the European Defense League for the Victims of Public Notaries accused of violating French privacy legislation.
November 29, 2006 Briefing Australia Brings First Reported Spam Violation Case
Australia, like the United States, has a federal anti-spam law. In a recent decision, the Federal Court of Australia imposed the first set of fines under that act against Clarity1 Pty Ltd, which had sent more than 230 million e-mails in violation of the act.
November 29, 2006 Briefing Rent-A-Center Enters into Settlement Agreement with California Attorney General
Rent-A-Center, Inc. agreed to pay more than $7 million in restitution and civil penalties to customers under a settlement agreement reached with the California Attorney General.
November 29, 2006 Briefing New FTC Proposed Rule Seeks To Prohibit Pre-Recorded Telemarketing Messages
The FTC has drafted a new proposed rule amending the Telemarketing Sales Rule which, if adopted, would prohibit telemarketers from delivering prerecorded phone messages to consumers with whom the caller has an ‘established business relationship’.
November 29, 2006 Briefing FDA Approval of “No Preservative” and “Fresh” Claims Not Sufficient
The National Advertising Division of the Better Business Bureau recently found various Perdue Farms Short Cuts poultry products’ advertisements claiming “no preservatives” and “fresh fully cooked” to be inconsistent with reasonable consumer expectations.
November 29, 2006 Briefing “Inducing Copyright Infringement” Theory Succeeds Against StreamCast Networks
The U.S. District Court for the Central District of California granted summary judgment in favor of the film and recording industries on September 27 by applying the Supreme Court’s test for inducement of copyright infringement, created by the Court in 2005 (Metro-Goldwyn-Mayer Studios Inc. v. Grokster Ltd., C.D. Cal., No. CF 01-08541, 9/27/06).
November 29, 2006 Briefing Copyright Office Determines Availability for Compulsory License Under Copyright Law to Make and Distribute Many (But Not All) Cell Phone Ringtones
In August, the Recording Industry Association of America asked the Copyright Office to analyze whether compositions used for downloadable cell phone ringtones—i.e., single melody lines or melody and harmony lines—or master ringtones taken from a master recording fell under the compulsory license scheme of the Copyright Act as “phonorecords.”
November 29, 2006 Briefing Customer Not Bound by Shrinkwrap Agreement that Constitutes “Additional Terms”
In Wachter Mgmt. Co. v. Dexter & Chaney Inc., Kan. No. 95, 102, (10/27/06) the terms of the licensor’s shrinkwrap agreement provided that use of the related software constitutes acceptance of such terms.
November 29, 2006 Briefing FTC Reaches $3 Million Settlement in Adware Distribution Case
According to an FTC complaint, affiliates of an adware distributor named Zango used “lureware” (free software) to encourage computer users to unsuspectingly download Zango’s adware software onto their computers.
November 29, 2006 Briefing California Court Finds Mortgage Brokers Knowingly Induced Spam
The Northern District of California found a group of mortgage brokers that had a business relationship with lead generators liable for CAN-SPAM violations.
November 29, 2006 Briefing FTC Issues Five-Year Strategic Plan
The FTC is required to release a five-year strategic plan, and did so on September 30. The plan provides direction about FTC strategies for consumer protection, including anti-spam and telemarketing enforcement, as well as enforcement of violations of consumer privacy.
November 29, 2006 Briefing Blocking of Opt-Out Requests as Spam Results in $50,000 Penalty
In an ironic twist, the FTC fined a marketing company (Yesmail Inc., d/b/a @Once Corp.) for blocking receipt of consumers’ opt-out requests.
November 29, 2006 Briefing FTC Asked to Investigate Alleged Tracking of Consumers’ Online Behavior
According to a recent request delivered to the FTC by the Center for Digital Democracy and the U.S. Public Interest Research Group, Internet companies are increasingly tracking consumers online behavior without consumers express “opt in” choice.
October 25, 2006 Briefing New York Attorney General Brings Another Sweepstakes Action Against CVS
In October, CVS Corporation reached a settlement with New York Attorney General Elliot Spitzer’s office to settle claims that the retailer did not comply with New York’s law requiring sweepstakes sponsors to offer all consumers, even those who do not make a purchase, equal access and opportunity to win sweepstakes prizes. As a result of the settlement, CVS has agreed to pay $152,000.
October 25, 2006 Briefing FTC and Nevada Attorney General Bring Action Against Sweepstakes Promoter
Both the Federal Trade Commission (FTC) and the Nevada Attorney General recently took action against a sweepstakes promoter for false and deceptive practices.
October 25, 2006 Briefing Florida Game Promotion Bonding and Registration Goes Online
The Florida Department of Agriculture’s Division of Consumer Services is now accepting game promotion filings online. Both registrations and bonds may be submitted online.
October 25, 2006 Briefing Federal Online Gambling Law Enacted: New Law Makes It Illegal To Process Payment to Online Gambling Companies
On October 13, President Bush signed the Internet Gambling Prohibition and Enforcement Act, which, instead of making it illegal for consumers to place online bets, targets payment processors. The Act prohibits banks, credit card companies and online payment systems from processing payments to any online gambling companies.
October 25, 2006 Briefing Web Sites May Need To Be Handicapped Friendly
 A federal court recently allowed the National Federation of the Blind to proceed with a lawsuit under the federal Americans with Disabilities Act against Target Corporation for failure to operate a web site that is accessible to blind users.
October 25, 2006 Briefing Free Offer Halted by Starbucks, Quick-Thinking Competitor Takes Advantage
Starbucks recently distributed an e-mail to family and friends of the company stating, “starting today until September 30th, please join us in ’surprising and delighting’ our family and friends, while introducing you to our iced beverages. Attached is an invitation for a complimentary iced Grande beverage.Please forward this invitation to everyone in your e-mail address book.”
October 25, 2006 Briefing Artist Sues for Use of Artwork in Advertising
The creator of New York’s famed “charging bull” statue, located near the Wall Street financial district, has sued both Wal-Mart Stores, Inc., and North Fork Bancorp Inc. for copyright infringement.
October 25, 2006 Briefing PayPal Promises 28 States It Will Modify Online Disclosures
In reaction to consumer complaints surrounding many of PayPal’s online disclosures and related practices, 28 state attorneys general investigated the online, bill-payment entity.
October 25, 2006 Briefing Band Sues for Use of Its Name in Advertising
The rock band Weezer recently filed suit in Los Angeles state court against Miller Brewing Company and its advertising agency, Young & Rubicam, for use of the band’s name in an advertising campaign.
October 25, 2006 Briefing Fictionalized Settings and Trademarks Don’t Infringe
A computer game that depicts thousands of virtual cartoon-style locations in “Los Santos,” including a strip club named “Pig Pen,” doesn’t infringe the trademark rights of the owners of a famous East Los Angeles strip club named “Play Pen Gentleman's Club,” according to a federal district court in California.
October 25, 2006 Briefing Trademark Dilution Revision Act Becomes Law
On October 6, 2006, the Trademark Dilution Revision Act was signed into law and became effective immediately. The revision was prompted by the Supreme Court’s decision in Moseley v. V Secret Catalogue Inc., in which the Supreme Court held that to establish dilution, a plaintiff would need to show actual dilution.
October 25, 2006 Briefing FTC Plans to Serve Information Requests on Food and Beverage Companies About Nature and Extent of Advertising Directed Towards Children
The FTC is currently working on creating a report on Food Industry Marketing to Children. Earlier this year it sought and received general comments about this topic, but determined it had insufficient evidence regarding “the nature and extent of marketing activities targeted to children and adolescents.”
October 25, 2006 Briefing FTC COPPA Settlement with Social Networking Site Nets $1 Million in Penalties
As we reported over the summer, the FTC indicated to Congress that it was taking steps to ensure a safe online experience for children at social networking web sites. Following up on its report, the FTC recently announced a settlement with Xanga.com, a social networking site, for alleged COPPA violations. As part of the settlement terms, Xanga.com agreed to pay a $1 million civil penalty, the largest COPPA penalty to date.
October 25, 2006 Briefing Unwilling Members of Shopping Loyalty Program Allege Privacy Violation
In a class action lawsuit filed in Boston against Webloyalty.com, Inc., an online marketing company, consumers alleged that their private information was improperly obtained and used to automatically enroll them in a shopping membership program.
October 25, 2006 Briefing E-mail Marketer Wins $11.7 Default Judgment Against U.K.-Based Spam “Blacklist” Operator
e360 Insight, an Illinois-based online marketing company, was recently awarded a $11.7 default judgment in its lawsuit against Spamhaus Project Ltd. Spamhaus, a U.K. entity, creates “blacklists” of alleged Internet spammers, and then provides the lists to Internet service providers who subsequently use them to block any incoming messages from blacklisted companies. e360 contended that its messages should not be labeled by Spamhaus as “spam,” as e360 sent e-mail marketing messages only to individuals who had opted-in to receive such messages.
Ocober 25, 2006 Briefing Utah Follows Michigan in Enforcing the Need to Scrub E-mail Lists Against Child Protection Registry
Following up on our August report about Michigan’s enforcement of its Child Protection Registry, Utah has issued $30,000 in fines against four companies for similar violations of its own Child Protection Registry law.
October 25, 2006 Briefing New Development in the “Binding Corporate Rules” Approach to EU Privacy Compliance
In 2003, the E.U. authorities issued guidelines for “binding corporate rules,” which multinational companies could follow and use to create their own corporate rules.
October 25, 2006 Briefing Status Update on Class Action Lawsuits for Data Breaches
With 34 state data breach notification laws now in place, more and more class actions are being filed after breach notifications are released by companies.
August 21, 2006 Briefing Court Holds That Fantasy Web Sites May Use Player’s Names and Statistics Without Obtaining a License
The U.S. District Court for the Eastern District of Missouri held in favor of the plaintiff, C.B.C. Distribution and Marketing, Inc., in a lawsuit filed against Major League Baseball in which the plaintiff sought the right to use Major League Baseball Players’ names and statistics in connection with an online fantasy baseball game.
August 21, 2006 Briefing Colors Protectable Trademarks if Secondary Meaning Acquired
Four universities—Louisiana State University, University of Oklahoma, The Ohio State University, and the University of Southern California—and their licensing agent brought suit against Smack Apparel Company for its sale of clothing that bore not only the schools’ logos, but also the schools’ distinctive colors.
August 21, 2006 Briefing Vaguely Worded Opt-In Does Not Necessarily “Express Consent” to Transfer Data
XAP, a service for the college-bound, allows users to fill out college applications online. XAP makes money by selling user data about prospective students to banks and other financial institutions who are hoping to garner the prospects’ loan business. In order to obtain consent to share personal data, XAP asks users “are you interested in receiving information about student loans or financial aid?”
August 21, 2006 Briefing Use Caution When Sending Bulk E-mails About Alcohol or Other “Sensitive” Products to Lists That May Include Children’ Addresses
Michigan has recently sued RR Media and Data Stream Group for sending e-mail advertisements to children whose addresses are registered on Michigan’s Child Protection Registry. The e-mails in question contained ads for the sale of alcohol as well as solicitations to participate in online gambling, two activities that Michigan alleges are unsuitable for children.
August 21, 2006 Briefing New York Attorney General Cracks Down on Deceptive “Scratch Off” Games
The New York Attorney general recently announced a series of settlements involving fake “scratch-off” prize promotions by automobile dealerships. Four New York auto dealerships and a Louisiana-based promotions agency settled by paying in total $67,000 in civil penalties.
August 21, 2006 Briefing YouTube.com Faces Copyright Infringement Suit
Robert Tur, the owner of the copyright to footage depicting the 1994 O.J. Simpson police chase and the 1992 police beating of Reginald Denny has filed suit against YouTube.com, a popular video-sharing Web site. The complaint, filed in U.S. district court, alleges that the unauthorized footage was posted on YouTube.com, and thousands of users downloaded the content.
August 21, 2006 Briefing Wyndham Enters Into Settlement With Florida Attorney General Regarding Disclosure Of Resort Fees
The owner of the Wyndham Hotel chain, LXR, recently agreed to enter into a settlement with the Florida Attorney General regarding undisclosed automatic fees charged to customers, including resort fees, resort tariffs, energy surcharges and parking fees.
August 21, 2006 Briefing No SAG Strike This Year
The ANA-AAA Joint Policy Committee on Talent Union Relations and the Screen Actors Guild and the American Federation of Television and Radio Artists reached an agreement regarding a two year extension to the current commercials agreements which would last through October 29, 2008. As such, there should be no actors strike this coming October.
August 21, 2006 Briefing Ninth Circuit Licensees Right to Sublicense Trademarks and Publicity Rights
On July 19, 2006, the Ninth Circuit upheld a district court opinion and ruled in Miller v. Glenn Miller Productions, Inc., No. 04-55874 (9th Cir. 2006) that a trademark licensee may not sublicense any trademark or publicity rights to third parties without the licensor’s express permission.
August 21, 2006 Briefing Online Display of Model’s Picture in Book Cover Not Infringement if Display Incidental to Normal Operation of Website
While still a minor, Thais Almeida had her photograph taken and included in the book Anjos Proibidos (Forbidden Angels). In the 2000 second edition of the book, Almeida’s photograph was placed on the cover of the book. Amazon, in its online promotion of the book, displayed the book cover, as is the online retailer’s practice. When Almeida discovered that the book cover was posted on Amazon’s site, she had her lawyers send a letter to Amazon requesting statutory damages.
August 21, 2006 Briefing Key Federal Privacy Laws Do Not Require Information Resellers to Safeguard All Sensitive Data
In June, the U.S. Government Accountability Office (GAO) issued a report to the Senate Committee on Banking, Housing, and Urban Affairs, which addressed the results of the GAO’s study regarding; (1) financial institutions’ use of information resellers; (2) federal privacy and security laws applicable to information resellers, (3) federal regulators’ oversight of information resellers; and (4) regulators’ oversight of financial institution compliance with privacy and data security laws.
August 21, 2006 Briefing Canadian Privacy Agency Upholds Sharing of Customer Data with U.S. Parent Company
On July 19, 2006, the Office of the Privacy Commissioner of Canada rejected the complaints of two Canadian consumers that their security system provider violated the Personal Information Protection and Electronic Documents Act (“PIPEDA”) by not obtaining their affirmative consent before sharing their personal information with its U.S. parent.
July 27, 2006 Briefing Rhode Island Enacts New Legislation Regarding Advertising of Mail-In Rebates
During the first week of July, the Rhode Island legislature amended the state’s deceptive trade practices act. It is now a deceptive trade practice for a retailer to advertise the availability of a manufacturer’s mail-in rebate on an item for sale by displaying the item’s net price less the manufacturer’s rebate at the time of purchase.
July 27, 2006 Briefing Feds Target Fulfillment Houses/Promotion Agencies in Groundbreaking Internet Gambling Indictment
One week after the House passed HR 4411, a bill that could cripple online gaming operators in the United States if enacted, federal regulators began cracking down on U.S. companies providing services to Internet gaming operators.
July 27, 2006 Briefing Court Upholds Online Contract Terms as “Easily Accessed”
A judge in the Southern District of New York rejected challenges to the validity of an online “click contract” based on allegations that the defendant customer did not read the terms of the agreement or appreciate the consequences after clicking an “Accept” icon on a website.
July 27, 2006 Briefing Parody of Well-Known Brand Can Exist Within Movie Entertainment
The Southern District of New York recently held that a brief use of the acronym BUFU in a comedy movie produced by Universal Studios was a legitimate parody of the FUBU clothing mark. According to the owner of the FUBU mark, the brand is meant to embody the spirit of the multicultural youth generation.
July 27, 2006 Briefing French Language Trademark Application Denied Due to English Equivalent
About six tenths of one percent of Americans speak the French language fluently. However, should an American recognize a French language trademark’s English equivalent, confusion between the two is likely, therefore the application to register the French equivalent will be refused.
July 27, 2006 Briefing Adware Firms Settle Class Action Lawsuit
Two adware firms in Illinois were sued due to the use of their programs that are designed to bombard consumers with pop-up ads when they are downloaded onto a consumer’s computer along with a requested program, such as a game, via the Internet.
July 27, 2006 Briefing Calls Made to DNC Registered Numbers That Were Included on Purchased Lists from List Brokers Results in $50,000 Penalty
Executive Financial Home Loan Corp., a California company that brokers and originates home loans and makes telemarketing calls to induce consumers to obtain home loans, recently settled a case with the FTC for alleged violations of the Telemarketing Sales Rule that resulted in a $50,000 penalty.
July 27, 2006 Briefing Connecticut Targets Magazine Solicitations Disguised as Bills and Collection Notices
In July, Connecticut Attorney General Richard Blumenthal reported that Time, Inc. will pay nearly $100,000 in restitution to Connecticut consumers harmed by the publisher’s solicitations for subscriptions and renewals that resembled bills and collection notices.
July 27, 2006 Briefing Maryland Enacts Gift Card Law
A Maryland gift card law that took effect on July 1 prohibits the issuance of gift cards that are subject to expiration dates or service fees within four years of origination.
July 27, 2006 Briefing FTC Concludes Public Deception in Video Game’s Failure to Have Embedded Mini-Game Rated by Industry Group
Take Two Interactive Software obtained a rating of “mature” for its Grand Theft Auto: San Andreas Fault video game from the Entertainment Software Rating Board, a gaming industry regulation group.
July 27, 2006 Briefing FTC Investigates Social Networking Sites for Compliance with COPPA
In a recent report to Congress, the FTC testified that it is taking steps to ensure a safe online experience for children at social networking websites.
July 27, 2006 Briefing Advertisers on French Peer-to-Peer Websites Containing Copyright Infringement Found Not Liable for Piracy
The Winston and Strawn Paris office, in coalition with a group of other firms, scored a major victory for its client, La Française des Jeux, the French State lottery, before the Criminal Court of Paris, in a case brought pursuant to a complaint by the producers of the hit French movie, Les Choristes, and the cinema industry.
June 29, 2006 Briefing Internet Cards Ruled as Illegal Gambling
A South Carolina court recently ordered the destruction of sweepstakes terminals used by a South Carolina company.
June 29, 2006 Briefing New Washington State Law Targets Online Gaming Operators
In June, a Washington state law took effect that makes online gambling a Class C felony instead of a gross misdemeanor, as it was deemed under the previous law.
June 29, 2006 Briefing Man Challenges Whether His Virtual Property That Was Created in a Virtual Community is Protectable Property
A “resident” of Second Life, a 3-D virtual web site-based community, has sued the site for the loss of his virtual real estate. In the game, participants (“residents”) create, buy and sell virtual property.
June 29, 2006 Briefing New York City's Metropolitan Transit Authority Successfully Asserts Rights in the Names of its Subway Lines
New York City’s Metropolitan Transportation Authority has over the years obtained trademark protection for its subway signs, including the line names “A”, “D”, and “F” and the numbers “1”, “4”, and “7.”
June 29, 2006 Briefing Herman Miller Protects Rights in Eames® Lounge Chair Design
Prominent furniture manufacturer Herman Miller recently defeated an attempt by a knockoff producer, A. Studio s.r.l. to use Herman Miller’s famed Eames lounge chair design.
June 29, 2006 Briefing “Leprechaun ” Trademark Held to Bar a Second “Leprechaun ” Trademark
The phrase LUCKY LEPRECHAUN for gaming machines was not entitled to registration in light of previous registration of LEPRECHAUN’S GOLD for gaming devices, according to the Trademark Trial and Appeal Board.
June 29, 2006 Briefing California Appellate Court Shields Bloggers’ Identities in Trade Secret Case
In May, a California Appellate Court held that Apple Computer Inc.’s legal attempt to unveil the identity of bloggers allegedly disseminating trade secrets contradicted the federal Stored Communications Act (“SCA”), California’s reporter shield law, and the First Amendment.
June 29, 2006 Briefing FTC Clarifies Established Business Relationship Exemption to Do Not Call Provisions
The FTC recently announced a settlement with a seller of discount health and prescription drug cards agreed to pay civil penalties of $300,000 for violating the Do Not Call provisions of the FTC’s Telemarketing Sales Rule.
June 29, 2006 Briefing Argentine Court Rules That Companies Must Obtain Prior Informed Consent Before Sharing Information with Third Parties
In Union de Usarios y Consumidores v. Citibank, N.A., an Argentine court ruled that the company had violated the Argentine Data Protection Law by failing to obtain proper consent before sharing information with third parties.
May 25, 2006 Briefing Release Barred Injury Claims By "Wheel of Fortune" Contestant
A contestant on "Wheel of Fortune" was allegedly injured when Pat Sajak “jumped on him” and sued the show’s producers.
May 25, 2006 Briefing Telemarketers Must Create and Provide Do-Not-Call Policies Upon Request
We have recently become aware that an individual by the name of Ryan Swanberg has been contacting companies throughout the United States by telephone and/or fax to request a copy of these companies’ written do-not-call policies.
May 25, 2006 Briefing Mastercard Sues FIFA To Enforce Right Of First Refusal
MasterCard International filed a lawsuit in April seeking an injunction against the Federation Internationale de Football Association, the governing body of the World Cup, to prevent FIFA from granting Visa International sponsorship rights to the 2010 and 2014 games.
May 25, 2006 Briefing Right of Publicity Suit Settled for $1.6 Million
New reports indicate that Tiger Woods recently settled a $1.6 million right-of-publicity lawsuit against the builder of his 155-foot yacht, who had used Tiger’s name and photographs in promotional materials.
May 25, 2006 Briefing Shoe Manufacturer Challenges Competitor's “Made in the USA” Claims in Federal Court
In April 2006, Ohio-based Rocky Shoes and Boots filed suit against its long-standing competitor Red Wing Shoe Co., claiming that Red Wing was confusing consumers with its false “Made in the USA” claims.
May 25, 2006 Briefing Recent Trademark Trial and Appeal Board Decisions on Certain Well-Known Marks
Instant Messenger is not generic for electronic messaging, and Freedom Fries is not the new name for french fries, according to the U.S. Trademark Trial and Appeal Board, which recently reversed contrary decisions of the marks respective Trademark Examiners.
May 25, 2006 Briefing Company Taken to Task by FTC for Security Breaches After Hacker Attack
Nations Title Agency, Inc., (NTA) a Kansas city title company promised consumers that it would maintain their personal information—including sensitive financial information—using “physical, electronic and procedural safeguards.”
May 25, 2006 Briefing Long Awaited Fax Ad Clarity: FCC Adopts Final Rules Implementing Junk Fax Act
Although the Telephone Consumer Protection Act of 1991 prohibited sending advertisements by facsimile, an exception was created by an FCC note to its original Final Rule. Under the exception, a company could send faxes to recipients with whom it had an established business relationship.
May 25, 2006 Briefing Corporate E-mail Guidelines Can Protect Against Allegations That Your Vendors Violated CAN-SPAM Act on Your Behalf
Hypertouch, a California company that provided free e-mail through its DSL service, brought suit under CAN-SPAM against Kennedy-Western University alleging that KWU had spammed Hypertouch e-mail subscribers.
May 25, 2006 Briefing Do You Have Your Opt-Out House in Order?: ICE.com Settles CAN-SPAM Charges with FTC for Alleged Failure to Have Opt-Out Processes In Place
On May 11, the FTC settled similar charges with ICE.com, an online jewelry retailer, for ICE’s alleged failure to respect e-mail opt-out requests. According to the FTC, ICE continued to send e-mail advertisements more than 10 business days after receiving opt-out requests.
May 24, 2006 Briefing Michigan Appellate Court Rules Ad Tabs Illegal Lottery
Last month, the Michigan Court of Appeals affirmed a circuit court decision and ruled that selling merchandising coupons featuring a chance for consumers to win cash instantly (“Ad-Tabs”) constitute an illegal lottery.
May 24, 2006 Briefing Missouri Sues Charity Over Delayed Raffle Drawings
The Missouri Attorney General sued a St. Louis-based charity attempting to stop certain charitable raffle practices. The Gateway to a Cure charity raises money for spinal cord research through raffles for cars and homes.
May 24, 2006 Briefing FCC Proposes Fine Against Television Station For Botched Sweepstakes
The FCC recently proposed a $4,000 fine against a television station in Jacksonville, Florida for improperly conducting a sweepstakes after receiving a complaint from one angry contestant.
May 24, 2006 Briefing Class Action Lawsuits Filed for Sex and Age Discrimination on Promotional Offers
Last May, the California Angels conducted a Mother’s Day promotion whereby all females 18 years of age and older attending the baseball game at Angels Stadium received a free Angels tote bag.
April 13, 2006 Briefing More Guidance on a Refer-a-Friend Programs From Recent FTC CAN SPAM Case
Jumpstart Technologies advertised that consumers would receive “free” movie tickets if they e-mailed five friends about Jumpstart’s FreeFlixTix program via Jumpstart’s online e-mail a friend process.
April 13, 2006 Briefing “Free” Trial Offer Stopped by States Attorneys General
Five dietary supplement companies in Cincinnati settled with several state Attorneys General regarding claims that their advertisements were false and misleading in violation of state laws. As part of the settlement, defendants agreed to pay restitution to consumers and $2.5 million to cover state investigation and litigation expenses.
April 13, 2006 Briefing Automatic Renewal of Subscription Thought Deceptive
Time Inc. recently agreed to a $4.5 million dollar settlement with 23 state attorneys general regarding automatic renewals for its magazine subscriptions. Instead of ending a subscription at expiration, Time initiated an automatic renewal method requiring consumers to affirmatively cancel their subscription to avoid being billed for a renewal.
April 13, 2006 Briefing Texas Repeals Restrictive Regulation Limiting the Use of Sweepstakes by Alcoholic Beverage Manufacturers
On February 17, 2006, the Texas Alcoholic Beverage Commission amended its regulations which govern games of chance by manufacturers of alcoholic beverages.
April 13, 2006 Briefing Telecommunications Company Settles False Advertising Charges with New York Over “Bundling”
Frontier Telephone settled charges brought by the New York Attorney General (NYAG) regarding its advertising for “free” months of DSL service and “free” unlimited long distance.
April 13, 2006 Briefing Michigan Challenges Wal-Mart on Pricing
The Michigan Attorney General recently brought legal action against Wal-Mart for its alleged failure to individually price items as required by state law.
April 13, 2006 Briefing Television Network Rejects Message Arguably “Buried” in Commercial
In February, Kentucky Fried Chicken (KFC) unveiled a new television commercial that allowed viewers to find a hidden message when slowly replaying the commercial on a digital video recorder (DVR) or VCR.
April 13, 2006 Briefing Screen Actors Guild Commercials Contract Strike Looms
To date, the ANA-AAAA’s and the Screen Actors Guild (SAG) have not come to terms on a new Commercials Contract.
April 13, 2006 Briefing Freelancer Held to Have Transferred Copyright
NASCAR commissioned the NEXTEL Cup Series trophy from the Franklin Mint. A freelance artist designed the trophy for the Mint.
April 13, 2006 Briefing Purchaser of E-Mail Marketing List Settles with New York AG for $1.1 Million
The New York Attorney General (NYAG) reached a settlement on March 6, 2006 with Datran Media LLC.  Datran purchases e-mail lists from third party list brokers and uses them to send e-mails to consumers to promote its client’s products and services.
April 13, 2006 Briefing Web Site “Click Wrap” Agreements May Not Work Globally
Holding that standard and familiar clauses to click wrap agreements were invalid, French courts fined “Free,” a French Internet Service Provider (ISP), approximately $52,124.
April 13, 2006 Briefing Agency’s Attempt to “Own” Common Phrase Rejected
A promotion company had the idea of developing a line of merchandise using the term “Opening Day” in conjunction with products bearing the trademarks and team names of Major League Baseball.
April 13, 2006 Briefing COPPA Rule Receives FTC’s Ongoing Stamp of Approval
The FTC recently voted to retain the Children’s Online Privacy Protection Act without modification on March 15, 2006. In doing so, the FTC is retaining the sliding-scale approach to obtaining verifiable parental consent.
February 21, 2006 Briefing Sweepstakes Firm Settles With 19 States for False and Deceptive Practices
Massachusetts-based sweepstakes firm Newport Creative Communications settled charges brought by 19 states that the firm lured donors with phony sweepstakes prizes to raise money for several reputable charities.
February 21, 2006 Briefing Radio Shack’s Combined Rebate Advertising Reviewed By Wisconsin Regulators
News reports indicate that the Wisconsin Department of Consumer Protection is investigating certain Radio Shack advertising relating to its rebate offers. Radio Shack had advertised two separate rebates for the same product at the same time—one for $65 and one for $70.
February 21, 2006 Briefing Pre-recorded Unsolicited Telephone Calls Soliciting Sweepstakes Entries Did Not Violate Federal Law
The radio station 106.7 Lite FM in New York made thousands of unsolicited prerecorded telephone calls to residential telephone numbers with an advertisement that stated “This week, when the music stops at 9:20, be the tenth caller at 1-800-222-1067. Tell us the name of the Motown song we played during that hour, and you’ll win one thousand dollars.”
February 21, 2006 Briefing Isley Brother Loses Copyright Infringement Challenge to Music License
Federal District court in New York recently dismissed a claim by a co-author of Isley Brothers’ songs against Sony Music Entertainment on the grounds that the other co-authors had agreed to the license.
February 21, 2006 Briefing E-Mails Inadequate to Create Five-Year Employment Contract
Cliff Dumas, a country music DJ, negotiated with the program director of a Chicago radio station by e-mail, sketching out a possible five-year arrangement. In the midst of negotiations, Dumas notified his current employer that he was terminating their agreement and moving on.
February 21, 2006 Briefing Significant Damages Awarded for Copyright Infringement of Banner Advertisement
A prominent online advertiser, LowerMyBills.com, recently obtained a judgment for $200,000 as a result of a lawsuit alleging copyright infringement and unfair competition against another online advertiser, NexTag.
February 21, 2006 Briefing In-Store Display and Sales Personnel Statements Not Advertising
Optimum Technologies is a manufacturer of flooring products that are sold at retail stores such as The Home Depot. The Home Depot had mistakenly displayed Optimum’s Hold-It For Rugs product in store under the Lok-Lift Rug Gripper name, and its salespeople had made similar mistaken representations.
February 21, 2006 Briefing "Sweepstakes Machines" Ruled Legal
A judge in Birmingham, Ala., ruled that sweepstakes video machines installed at a Birmingham race course do not violate the state's gambling law.
January 12, 2006 Briefing Advertising for Sweepstakes Directed at Children Must Clearly Disclose the Free Method of Entry
CARU recently reviewed a television commercial for a fruit flavored snack that told the audience they could win prizes by going online and guessing the secret flavor inside specially marked boxes of the fruit snack.
January 12, 2006 Briefing Senator Calls Upon FTC for Federal Rebate Laws
Senator Charles Schumer of New York recently urged the Federal Trade Commission to investigate rebate policies and to establish rules to overhaul the rebate process.
January 12, 2006 Briefing Balloon Accident Causes Promotional Sponsors to Review Liability Protection
Promoters and sponsors of events have reason to reconsider their safety and security procedures and the liability clauses of their contracts following an accident at this year’s Macy’s Day parade.
January 12, 2006 Briefing NYC Department of Consumer Affairs Takes Action on Return and Restocking Fees and Deceptive Cell Phone Advertising
The New York City Department of Consumer Affairs has recently become quite active in policing advertising and promotional practices
January 12, 2006 Briefing Scientific Claims Must Be Carefully Stated
Bayer's Animal Health Division has issued an apology and a correction of an “error” made in certain promotional materials it distributed at three veterinarian conventions this past summer and in four veterinarian publications.
January 12, 2006 Briefing Federal Court Protects Subject of a Photograph
Earlier this year, Coors Brewing Company was sued for copyright infringement by a photographer after Coors allegedly copied the style of the photographer’s picture of NBA player Kevin Garnett in a billboard advertisement.
January 12, 2006 Briefing NFL Player Sued Video Game Manufacturer for Pairing Statistics With the Wrong Face
Steve Neal, an African American college football player who tried out for the NFL but didn’t make it, was offended when his image appeared in Electronic Arts’ Madden NFL Football video game, in association with the statistics of a Caucasian player, also named Steve Neal, who plays for the New England Patriots.
January 12, 2006 Briefing Justice Department Investigates Websites That Accept Ads for “Free” Online Gambling Sites
The U.S. Justice Department is investigating major media firms that accept advertising dollars from online pay-to-play poker sites employing creative methods to bypass U.S. advertising restrictions.
January 12, 2006 Briefing Punitive Damages Not Available In Copyright Case
Despite some conflicting case law, another federal court has ruled that in a copyright infringement case, punitive damages are not available to the plaintiff.