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Law of Advertising, Marketing and Promotions, The

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David H. Bernstein, Bruce P. Keller


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“This is a great resource for anyone working in advertising law, and will also save a ton in Westlaw charges if you hand it over to associates just learning the ropes.”
– Rebecca Tushnet's 43(B)log

“At last: a desk manual that works for everybody... An extraordinarily well organized and itemized work that explains the law in plain English and provides the current views of circuit courts where available.” – Advertising Law Alert

Advertising has become ubiquitous in daily life, especially since the explosion of new media. The Law of Advertising, Marketing and Promotions explains the complex and evolving legislative, regulatory, court-based, and self-regulatory rules governing advertising content and practices.

When is an omission a false claim under the Lanham Act? When can you use a competitor's name in online keyword advertising? This timely and indispensable treatise covers everything from the procedures for challenging false advertising to the questions raised by the latest online techniques. It provides legal analysis as well as practical tools, such as checklists for claim substantiation, disclosure and disclaimers, and sweepstakes.

Topics covered include: statutes, regulations, and case law; industry rules such as television network and Children's Advertising Review Unit (CARU) guidelines; false advertising claims and defenses; consumer surveys; intellectual property infringement, fair use and trademark dilution; direct marketing, sweepstakes, and contests; keywords, pop-ups and other online ads; rules for special products and industries; pros and cons of litigation in various fora; remedies; and more.

This complete guide to legal risk will help advertisers and their counsel make sense of overlapping legal structures, anticipate problems, and handle the issues raised by all types of advertising.

Book #00709; loose leaf, one volume, more than 750 pages; published in 2011, updated as needed; no additional charge for updates during your subscription. Loose leaf print subscribers receive supplements. The online edition is updated automatically. ISBN 978-1-58852-172-9

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  • Availability: Available
  • Brand: Law Journal Press
  • Product Type: Books
  • Edition: 0
  • Page Count: 792
  • ISBN: 978-1-58852-172-9
  • Pub#/SKU#: 709
  • Volume(s): 1

Author Image
  • David H. Bernstein
David H. Bernstein is a litigation partner in the New York office of Debevoise & Plimpton LLP. He has handled a wide range of high profile intellectual property matters involving false advertising, trademark and trade dress infringement and dilution, Internet and domain name law, anti-counterfeiting, copyright infringement, right of publicity, misappropriation, trade secret and patent infringement matters. Mr. Bernstein is recognized as a leading intellectual property practitioner by such publications as the IFLR Benchmark Litigation Guide, Chambers USA and Legal 500 US.

Mr. Bernstein is also an adjunct professor at George Washington University Law School where he teaches Advanced Trademark Law. He was formerly Counsel to the International Trademark Association (INTA) and currently chairs INTAs U.S. Amicus Brief Subcommittee. He has written and lectured widely on IP law issues. Mr. Bernstein received his A.B. magna cum laude from Princeton Universitys Woodrow Wilson School of Public and International Affairs in 1985, his M.Sc. from the London School of Economics and Political Science in 1986, and his J.D. from Yale Law School in 1989. He served as Law Clerk to the Honorable Robert E. Keeton, US District Court for the District of Massachusetts, from 1989-1990.



Author Image
  • Bruce P. Keller
Bruce P. Keller supervises the Intellectual Property Litigation practice at Debevoise & Plimpton LLP. His experience covers all areas of intellectual property and media law, including false advertising, unfair competition, right of publicity, trademark, copyright and sports related matters. He is consistently ranked as one of the nations leading lawyers in these areas by a number of industry publications and, over the last 25 years, has successfully litigated a number of precedential advertising-related matters.

In addition to maintaining a full-time litigation practice, Mr. Keller has taught at The Berkman Center for Internet and Society at Harvard Law School and, in May 2008, received the Berkman Award, the Centers highest honor, for his pro bono service as a lawyer, educator and co-director of the Centers clinical program. He has also been Counsel to the International Trademark Association (INTA).

Mr. Keller received a B.S. from Cornell University in 1976 and his J.D. from Boston University in 1979.


CHAPTER 1
Introduction

§ 1.01 Introduction to Advertising
§ 1.02 Defining False Advertising: The Twin Pillars of Falsity and Substantiation
§ 1.03 The Role of Disclaimers in Advertising Law
§ 1.04 The Role of Consumer Surveys in Advertising Law
§ 1.05 The Impact of Other Intellectual Property Regimes on Advertising Law
§ 1.06 Rules, Regulations, and Guidelines for Particular Kinds of Advertising
[1] Sweepstakes and Lotteries
[2] Direct Marketing
[3] Online Advertising
[4] Other Special Areas
§ 1.07 The Procedures Governing Advertising Claims
§ 1.08The Remedies for False Advertising

CHAPTER 2
False, Unfair, or Deceptive Advertising

§ 2.01 Introduction
§ 2.02 Definition of False, Unfair, or Deceptive Advertising
[1] False Statement of Fact v. Protected Statement of Opinion
[2] Advertising, Promotion, and Commercial Speech
[3] Likely to Mislead
[4] Materiality
[5] “Unfair”
§ 2.03 Evaluating Advertising Claims in the Context of the Advertisement
§ 2.04 False Express Claims
§ 2.05 False Implied Claims
§ 2.06 Determining the Nature of the Claim
§ 2.07 False Establishment Claims
§ 2.08False Comparative Claims
§ 2.09False Demonstrations and Dramatizations
§ 2.10 Omissions as False Claims
[1] Lanham Act
[2] FTC
[3] State Laws
§ 2.11 Humor and Parody
§ 2.12 Puffery
[1] General Claim
[2] Incapable of Measurement
[3] Presented as Subjective Statement
[4] Unlikely to Be Relied on by Consumers

CHAPTER 3
Claim Substantiation

§ 3.01 Introduction
§ 3.02 Overview of Substantiation Requirements
[1] The Prior Substantiation Requirement
[2] The “Reasonable Basis” Requirement
§ 3.03 Recurring Issues with Scientific Studies and Survey Evidence
[1] Industry Standard Tests and Non-Standard Proprietary Testing
[2] Test Design and Protocol
[3] Statistical Significance
[4] Proper Sample Size
[5] Survey Evidence
[6] Relying on Third-Party Testing
§ 3.04 Substantiating Endorsement and Testimonial Claims
[1] Endorsement Claims
[2] Claims that a Product or Service is “Preferred”
[3] Claims that a Product or Service Is “Recommended”
[4] Consumer Testimonial Claims
§ 3.05 Substantiating Claims for Pharmaceutical Products
[1] Cosmetic Products
[2] Over-the-Counter Drugs
[3] Prescription Drugs
[4] Medical Devices
§ 3.06 Substantiating Claims for Dietary Supplements
§ 3.07 Substantiating Quality Claims
[1] “New” Claims
[2] “Fresh” Claims
[3] “Natural” Claims
[4] “Pure” Claims
[5] Environmental Claims
§ 3.08Substantiating Product Line Claims
§ 3.09Substantiating Price Claims
[1] “Free” Claims
[2] “Sale” or “Reduced Price” Claims
[3] Guarding Against Bait and Switch Advertising
§ 3.10 Substantiating Origin Claims
[1] “Made In USA” Claims
[2] Claims Regarding Specific States and Countries
§ 3.11 Substantiating Comparative Claims
[1] Comparative Claims Involving Taste Tests
[2] Comparative Pricing Claims
§ 3.12 Substantiation Issues with Guarantees and Warranties
§ 3.13 Substantiation Checklist

CHAPTER 4
Disclosures and Disclaimers

§ 4.01 Introduction
§ 4.02 Guidelines for Effective Disclaimers
[1] Proximity and Placement
[2] Prominence
[3] Duration and Repetition
[4] Appropriateness to the Medium
[5] Understandable Language
§ 4.03 Ineffective Disclaimers
[1] Disclaimers May Not Cure Literal Falsehoods
[2] Disclaimers May Not Contradict the Main Message
§ 4.04 Required Disclosures
[1] Federal Trade Commission Regulations
[2] Endorsements and Testimonials
[3] Specific Goods and Services
[4] Credit Terms and Leases: The Truth In Lending Act / Credit Card Accountability Responsibility and Disclosure Act of 2009
[5] Federal Drug Administration Regulations
[6] Sweepstakes and Contests
§ 4.05 Additional Requirements Imposed by Television Networks
[1] “Expert Panels”
[2] Dramatizations, Reenactments, Simulations, Slices of Life
[3] “Free” Offers
[4] Mail, Telephone and Internet Orders
[5] Films, Shows and Videos
[6] Nutritional Supplements
[7] Personal Products
[8] Pet Food
[9] Premiums and Offers
[10] Product Demonstrations
[11] Infomercials and Program-Length Commercials
[12] Weight-Loss Advertising
[13] Distribution and Availability
[14] Nutritional Information
§ 4.06 Disclosures in Children’s Advertising
[1] CARU Guidelines
[2] Television Network Requirements
§ 4.07 Checklist of Disclosure and Disclaimer Issues

CHAPTER 5
Survey Evidence

§ 5.01 The Role of Survey Evidence
§ 5.02 The Importance of Reliable Survey Design
[1] The Universe
[2] The Sample
[3] Survey Procedures, Questions and Controls
[4] Data Reporting and Analysis
[5] Objectivity
§ 5.03 Managing Discovery
§ 5.04 Admitting Surveys as Evidence
§ 5.05 Ways to Critique Surveys in Court

CHAPTER 6
Intellectual Property Rights

§ 6.01 Introduction
§ 6.02 Trademarks
[1] Generally
[2] Advertiser’s Trademarks
[3] Trademarks Owned by Others
[4] Infringement
[5] Dilution
[6] The Fair Use Defenses
[7] Parody
[8] Special Trademark-Related Internet Issues
§ 6.03 Copyrights
[1] Use of Copyrighted Material
[2] Copying Copyrighted Material
[3] Copyrighted Material Online
[4] The Fair Use Defense
§ 6.04 Patents
[1] False Marking
[2] Active Inducement of Patent Infringement
[3] Advertisements Alleging Patent Infringement
[4] Patent Protection for Advertising Methods
[5] Patent Protection for Advertising Equipment
§ 6.05 Right of Publicity
[1] Use of Likeness, Name, Persona
[2] Look-Alikes/Sound-Alikes
[3] Copyright Preemption
[4] Parody
§ 6.06 Right of Privacy
[1] Federal Trade Commission Initiatives
[2] Self-Regulation
[3] European Union Regulations

CHAPTER 7
Sweepstakes and Contests

§ 7.01 Introduction
§ 7.02 Lotteries
[1] Prize, Chance, and Consideration
[2] Lotteries, Sweepstakes, and Contests Distinguished
[3] Regulation and Enforcement
§ 7.03  The Element of Consideration
[1] What is Consideration?
[2] Alternate Method of Entry
[3] Special Consideration Issues
§ 7.04 Skill Contests
[1] Pure Chance
[2Dominant Factor Test
[3] Objective Evaluation
[4] Skill Contests Requiring Consideration
§ 7.05 Advertising the Promotion
[1] The Deceptive Mail Prevention and Enforcement Act
[2] State Disclosure Regulations
§ 7.06  State Procedural Requirements
[1] Posting Rules and Regulations at Retail Store
[2] Registration and Bonding
[3] Winner’s Lists
[4] Record Retention
§ 7.07 Awarding Prizes
§ 7.08Internet Promotions
[1] Consideration
[2] Privacy Considerations
§ 7.09Official Rules Checklist

CHAPTER 8
Direct Marketing

§ 8.01 Introduction
§ 8.02 The Rights of the Consumer
[1] Privacy
[2] Cooling Off Period
[3] Thirty-Day Rule
[4] Negative Option Rule
[5] Unsolicited Merchandise
§ 8.03 Advertising by Direct Mail
§ 8.04 Rules for the Telemarketer
[1] Legal Framework and Preemption
[2] Telemarketing Defined; Exemptions
[3] Registration, Licensing and Bonding
[4] Record Keeping
[5] Disclosures and Representations
[6] Automatic Dialing Systems and Prerecorded Messages
[7] Miscellaneous Regulations
§ 8.05 Advertising by Fax
§ 8.06 Enforcement of Telemarketing Laws
[1] Enforcement of the Telephone Consumer Protection Act (TCPA)
[2] Enforcement of the Telephone Sales Rule (TSR)
[3] Enforcement of State Telemarketing Laws

CHAPTER 9
Online Advertising

§ 9.01 Kinds of Online Advertising
[1] Banner Advertising
[2] Pop-Up Advertising
[3] Search-Based Advertising
[4] E-Mail Advertising and Spam
[5] Linking and Framing
[6] Location-Based Advertising
§ 9.02 Application of the Lanham Act and Copyright Act
[1] Third Party Pop-Up Advertising
[2] Metatagging and Keyword Searching
[3] Linking and Framing
§ 9.03 Regulation of Truth and Accuracy
[1] Government Regulation
[2] Industry Self-Regulation
§ 9.04 Privacy
[1] Government Regulation
[2] Self-Regulation
§ 9.05 Anti-Spam Efforts
[1] The CAN-SPAM Act of 2003
[2] Spam-Blocking Technology
[3] Lawsuits Under Common Law and Statutory Theories
§ 9.06 Personal Jurisdiction
§ 9.07 Cross-Border Rights and Liabilities
[1] Trademark Disputes
[2] Privacy Harmonization

CHAPTER Ten
Special Advertising Issues

§10.01 Introduction
§10.02 Drugs, Cosmetics and Food
[1] The Overlap of FTC and FDA Authority
[2] FDA Authority to Regulate Prescription Drug Advertising
[3] Cosmetics Advertising
[4] Food Advertising
[5] Nutritional Supplement And Over-The-Counter Drug Advertising
§10.03 Professional Advertising
[1] Attorney Advertising
[2] Physician Advertising
§ 10.04 Alcohol, Tobacco & Firearms
[1] Alcohol Advertising
[2] Tobacco Advertisements
[3] Firearms Advertisements
§10.05 Financial Services/Securities
[1] Financial Services
[2] Securities
§10.06 Gambling
[1] Introduction
[2] Federal Regulation of Gambling Advertising
[3] State Regulation of Gambling Advertising
§ 10.07 Political Advertising
[1] Reporting Requirements
[2] Disclaimers
[3] Spending Limitations
[4] Requirements of Broadcasters
§ 10.08Advertising to Children
[1] Introduction
[2] Regulations Governing Advertising to Children

CHAPTER 11
PROCEDURAL ASPECTS OF FALSE ADVERTISING CHALLENGES

§ 11.01 Introduction
§ 11.02 Administrative Regulation: Federal Trade Commission
[1] Evaluation Criteria
[2] Advisory Options and Staff Advice
[3] Industry Guides and Statements of Enforcement Policy
[4] Rule Making
[5] Administrative Proceedings
[6] Federal Court Litigation
[7] FDA Citizen Petitions
§ 11.03 Competitor Regulation: The Lanham Act
[1] Standing
[2] Elements of a Lanham Act Claim
[3] Expedited Discovery
[4] Statute of Limitations
§ 11.04 State Law
[1] Competitor Actions
[2] Consumer and Class Actions
§ 11.05 Self-Regulation Through NAD, CARU, NARB, and ERSP
[1] Cases Appropriate for NAD/ERSP/CARU Review
[2] Standing
[3] Challenge Procedure
[4] Appeals
[5] Referrals to Government Agencies
§ 11.06 Television Networks
[1] Pre-Screening by Networks
[2] Challenges to Advertisements

CHAPTER 12
Remedies

§ 12.01 Introduction
[1] Lanham Act Remedies
[2] UDAP Remedies
[3] FTC Remedies
§ 12.02 Injunctive Relief
[1] Standard for a Preliminary Injunction or TRO
[2] The Security Bond
[3] Types of Injunctive Relief
[4] Defenses
§ 12.03  Damages
[1] Defendant’s Profits
[2] Damages Sustained by Plaintiff
[3] Costs
[4] Punitive Damages
§ 12.04  Attorneys’ Fees

Index