Behind the Scenes

Arent Fox's advertising law blog - latest news and trends in advertising, data security & privacy, and fashion & entertainment.

Behind the Scenes
Advertising, Promotions, Sweepstakes & Contests
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ADT Home Security Settles Charges Over Deceptive Advertising

What Made News?

The FTC is cracking down on misleading endorsements in advertising, and the home security company ADT has the lumps to prove it. Earlier this month, ADT settled FTC charges that it had deceived consumers by failing to disclose that “independent” security experts were in fact paid ADT spokespeople.

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Advertising, E-Commerce, Mobile Marketing, Social Media, User-Generated Content
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Internet Search Results and Rankings Are Speech Protected by First Amendment

* The following article was originally published in Law360.

Companies conducting e-commerce rely on search engines and computer algorithms to retrieve, recommend and rank information and products for their customers. For instance, Google retrieves and lists virtually every kind of information that its users seek. Likewise, by using data such as its users’ past purchases and demographic information, Amazon lists and recommends customized products for particular users. In this same way, Netflix recommends movies for its users, and Apple ranks apps on its ITunes App Store. Receiving favorable recommendations and priority in rankings are incredibly important to businesses engaged in e-commerce. But are these computer-generated recommendations and search results speech that is protected by the First Amendment?

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Advertising, Promotions, Sweepstakes & Contests, Social Media
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FTC Warns Cole Haan Over Pinterest Contest

What Made News?

In a recent letter, the Federal Trade Commission (FTC) alleged that a promotional contest on Pinterest violated Section 5 of the FTC Act. Although the FTC did not take any direct enforcement action against Cole Haan, the letter forced Cole Haan to discontinue the contest and is one of the first instances in which the FTC has offered an opinion about what it takes to keep social media contests and promotions on the right side of federal advertising laws.

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Advertising, Product Placement & Distribution, Promotions, Sweepstakes & Contests, E-Commerce, Gaming & Interactive Media
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Court Rules that Size, Placement of Forum-Selection Clause is Pivotal in Microsoft Case

What Made News?

A recent ruling out of West Texas in Mendoza v. Microsoft, Inc., 5:13-CV-00378 (W.D. Tex. March 5, 2014) serves as a reminder that companies must make sure their service agreements and online privacy policies conform to industry best practices, as well as legal requirements. The structure and format of these agreements can be critical to their enforceability and companies should not take any aspect for granted.

What Did the Court Rule?

According to the recent decision in Mendoza v. Microsoft by the US District Court for the Western District of Texas, a forum selection clause in an electronic “Terms of Use” agreement is contractually valid. In upholding the validity of the forum selection clause, the Court noted that the clauses are “presumed enforceable” in the Fifth Circuit and should be upheld unless the party opposing enforcement can show that the clause is unreasonable.

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Advertising, Product Placement & Distribution, Promotions, Sweepstakes & Contests
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We See What You Did There: Supreme Court Labels ‘Prudential Standing’ as Misleading in Key False Advertising Row

Static Control Components, Inc. may bring a false advertising claim against Lexmark International, Inc. for telling Static Control’s customers that it was illegal to use Static Control chips in refurbished ink cartridges, the Supreme Court ruled in a unanimous opinion authored by Justice Antonin Scalia. The Court’s ruling greases the skids for false advertising plaintiffs, who now face a lower burden in demonstrating prudential standing, and likely has broad-reaching implications for other business litigation.

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Advertising, Promotions, Sweepstakes & Contests
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FTC Cracks Down on Misleading Environmental Marketing
As part of its effort to ratchet up enforcement on environmental claims and violations of the Guides for the Use of Environmental Marketing Claims (or Green Guides), the Federal Trade Commission (FTC) reached two separate settlements with companies accused of making misleading claims involving plastic products.
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Advertising
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Arent Fox Partner Anthony Lupo Speaks in Panel Discussion at 2014 Legal and Regulatory Conference

On April 9, 2014, Anthony V. Lupo will participate in a panel discussion about advertising and updates in the FTC at the 2014 Legal and Regulatory Conference. The panel, titled “Don Draper in the Digital Age: How Technology is Changing the Law of Advertising,” will cover topics such as native advertising, social media, the internet of things and consumer consent, and behavioral advertising. Additional speakers will include Farah Ahmed of the Personal Care Products Council, Andrew Udin of MRY Advertising, and Anthony Justman of Sony Computer Entertainment.

To learn more about the Conference, click here.

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Advertising, Product Placement & Distribution
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Do Clothing Manufacturers Need to Rethink Marketing Tactics for Outlets?
Four members of Congress recently asked the Federal Trade Commission to launch a federal investigation into the marketing practices conducted by outlet stores. They are arguing that because of the way outlets market their products, consumers may be unaware that lower quality items never intended to be sold at the regular retail store are often made available in the retailer’s outlet collection.
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Advertising
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Sarah Bruno to Speak During ANA’s Advertising Law and Public Policy Conference

On April 24, 2014, Sarah L. Bruno will present “We’re All Buzzing! Substantiation in the Tech Industry” during the Association of National Advertisers’ Advertising Law & Public Policy Conference. As with past conferences, attendees will hear from important regulators on key issues that are shaping the legal and political climate for advertising and marketing.

Sarah’s presentation will focus on some of the more daring advertising claims made in the technology industry and provide insight on what is needed to substantiate them. It will also discuss the challenges presented in advertising advanced technology law, including what disclosures should be considered when a product employs technology that is not yet in existence. The panel will also provide an overview of the legal issues surrounding “green” claims in the technology industry.

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Advertising, E-Commerce, Mobile Marketing, Social Media
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California State Court Decision Could Spell Trouble for Some Online Retailers

A recent state court decision in California could prove a major headache for online retailers that engage in comparative price advertising. Although the decision — People of the State of California v. Overstock.com — is not binding precedent and its future on appeal is far from clear, the decision suggests that retailers may be forced to adopt more rigorous internal standards when engaging in comparative price advertising.

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Arent Fox LLP, founded in 1942, is internationally recognized in core practice areas where business and government intersect. With more than 350 lawyers, the firm provides strategic legal counsel and multidisciplinary solutions to clients that range from Fortune 500 corporations to trade associations. The firm has offices in Los Angeles, New York, San Francisco, and Washington, DC.