Behind the Scenes

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

Behind the Scenes
Trademark Infringement, Social Media, User-Generated Content, Product Placement & Distribution, E-Commerce, Advertising
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CrossFit Legal Muscle No Match for the “CrossFit Mama”

According to a recent ruling in the US District Court for the Northern District of California, CrossFit may have violated the Digital Millennium Copyright Act (DMCA) by submitting a DMCA takedown request to Facebook based on trademark rights instead of copyrights. The case is a reminder that there are consequences under the DMCA for companies that fail to exercise caution when policing their trademark rights and copyrights on the internet.

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Health Privacy & Security, Social Media, E-Commerce, Advertising
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News Roundup: Google, Facebook, LinkedIn Grab Headlines

FTC Calls Unreasonable Security an Unfair Trade Practice

A lawsuit filed by the Federal Trade Commission (FTC) against Accretive Health, Inc. reminds employers to ensure they have a policy in place to manage employee use, access and control over personal data. The FTC investigation began when an Accretive employee’s laptop, storing the sensitive health information of 23,000 patients, was stolen.

While the loss of a laptop alone may not have been viewed as a large problem, the fact that the employee had that much information on the laptop when the information was not necessary for the employee to do his job was viewed as a larger issue. Additionally, the FTC determined that the company created unnecessary risk to consumer information by permitting the transport of sensitive information in unsecure manners, failing to limit access to information, and failing to have proper data removal or destruction processes.

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COPPA & GLB, E-Commerce, Social Media, User-Generated Content
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New COPPA Consent Method Gives Websites Greater Flexibility

The Federal Trade Commission (FTC) recently approved a new method for obtaining verifiable parental consent that could make it easier for companies to comply with the Children’s Online Privacy Protection Act (COPPA) Rule. The COPPA Rule applies to websites that are “targeted” at children under the age of 13 and websites that have “actual knowledge” that they are collecting personal information directly from users of another website or online service directed to children (covered websites). Primarily, the Rule requires a covered website to provide notice to parents about its information collection practices, as well as obtain verifiable parental consent prior to collecting personal information from children. To assist companies in complying with the verifiable parental consent requirement of the COPPA Rule, a technology services company called Imperium LLC developed the new method, which it hopes will streamline the consent process for parents and website operators.

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Advertising, Product Placement & Distribution
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What’s in a Name? A Juice by Any Other Name Does Taste as Sweet, Says The Coca-Cola Company

The US Supreme Court has agreed to consider a dispute between Pom Wonderful (Pom) and The Coca-Cola Company related to whether a drink label can be considered deceptive under federal false advertising laws, but permissible under regulations of the Food & Drug Administration (FDA). A decision in the case could have a significant impact on federal false advertising litigation and potentially force some companies to reexamine their food labeling practices.

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Advertising, E-Commerce, Mobile Marketing, Social Media, User-Generated Content
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Google Dodges a Bullet: Plaintiffs Lack Standing to Sue Over Co-Mingled Data

According to the US District Court for the Northern District of California, Google’s co-mingling of the personal identification information (PII) it collects from users across multiple product platforms does not create an injury sufficient to grant standing to sue in federal court. Merely alleging that Google profited off users’ data is not enough. Rather, plaintiffs must allege some specific economic deprivation resulting from the use of the data. As stated by the Court: “a plaintiff must do more than point to the dollars in a defendant’s pocket; he must sufficient allege [sic] that in the process he lost dollars of his own.”

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Advertising, E-Commerce, Promotions, Sweepstakes & Contests, Social Media, User-Generated Content
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Searching for Answers over Keyword Searches: CDA Blocks State Law IP Claims

By now, most consumers are familiar with those sponsored links that appear on Yahoo!, Google, or Bing after they search for something on the Internet. Those “keyword” advertisements are a significant source of revenue for the online search engines, appearing on consumers’ computer screens next to the “organic” search results when consumers type in relevant phrases or terms. The ads work because they are designed to mirror the consumer’s search and ideally to provide the consumer with exactly what they were looking for. But some companies are crying foul – arguing that the keyword ads are so close to consumer searches that they violate the companies’ intellectual property rights.

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E-Commerce, Mobile Marketing, Payment Processing, Electronic Fund Transfers & Mobile Payments, Prepaid & Stored Value Cards, Product Placement & Distribution
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Never Mind the NSA, Privacy Groups Set Sights on Big Retail

With the proliferation of smart phones and other mobile devices, it has never been easier for brands and marketers to collect data about the habits and desires of their customers. But, as a group of major national retail stores recently discovered, the proliferation of data has also led to a renewed sensitivity to consumer privacy.

Just as retailers track consumer behavior when they shop online, retailers are eager to track consumer behavior when they shop in old-fashion brick and mortar stores, and mobile devices are finally making this possible. Using “mobile location analytics,” technology companies are working on services that would provide aggregate reports to retailers on everything from consumer shopping patterns, check-out waiting times, and the optimal store layout.

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Trademark Infringement, Publicity Rights, Advertising
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Beastie Boys: (You Gotta) Fight for Your Right (To Fair Use!)

The Beastie Boys don’t play games when it comes to copyright infringement. The legendary hip hop band is waging an aggressive legal battle against a company called GoldieBlox that makes engineering toys for girls over what the band claims is copyright and trademark infringement related to its 1987 hit song “Girls.”

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Advertising, E-Commerce, Payment Processing, Electronic Fund Transfers & Mobile Payments, Product Placement & Distribution
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Making a List and Checking it Twice: FTC Sends Warning to Online Retailers

Santa’s not the only one who is making a list this holiday season: the FTC is keeping a close watch on online retailers and is warning that misbehaving retailers will be getting lumps of coal in the form of FTC enforcement actions. The holiday dust-up stems from a series of letters that the FTC recently sent out to Internet retailers reminding them of their obligation to ensure that consumers have access to product warranty information before they make their purchases.

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Advertising, E-Commerce, Product Placement & Distribution, User-Generated Content
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FTC Hosts Workshop on “Native Advertising”

The Federal Trade Commission hosted a day-long workshop on “native advertising” on December 4th in Washington, D.C. Native advertising, in which advertisements or sponsored content imitate the form and style of the editorial content in which they are featured, has been around for decades, but is drawing increasing scrutiny as it proliferates in digital media and on social networks, and takes on new and increasingly sophisticated forms. Under Section 5 of the FTC Act, the FTC is empowered to prohibit advertisements that are deceptive or misleading, however as the workshop made clear, there is considerable disagreement about when native advertisements become deceptive and whether further FTC guidance on the subject of native advertising is necessary.

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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.