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, 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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COPPA & GLB, Privacy & Security - US & Abroad, User-Generated Content
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Youthful Indiscretions? California Offers Minors a Clean Slate

Already one of the strictest states in the country when it comes to protecting online privacy, California recently passed another law that may require website operators to change their privacy policies. The new law would essentially be an insurance policy against youthful bad judgment, allowing minors to erase those embarrassing public comments or internet posts that could make for awkward conversation with a future admissions officer or employer.

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Advertising, E-Commerce
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Impending Launch of .CLOTHING and Other Fashion-Related gTLDs: Is Your Company Prepared?

As you may have heard, we are on the verge of a vast expansion of the Internet. Currently, there are only about two dozen generic top-level domains (“gTLDs”), such as .com, .net, and .info. However, there will soon be more than 1,000 new gTLDs, many of which are relevant to companies in the fashion and luxury goods industries. For example, third parties have applied for the right to operate .clothing and .fashion as new gTLDs. Other notable applications include .beauty, .boutique, .buy, .design, .home, .life, .lifestyle, .living, .luxe, .luxury, .sale, .shoes, .shop, .shopping, .store, and .style. Finally, a handful of premier fashion brands opted to apply for the exclusive right to operate the gTLD matching their brand, including .cartier, .chanel, .gucci, .hermes, and .tiffany, and some department stores also choose to apply for their brands, such as .bloomingdales.

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E-Commerce, Telemarketing & Other Direct Marketing
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CDA Provides Safe Harbor for Internet Service Providers, Leaves Businesses Up the Creek

Recent court decisions suggest that federal law may limit businesses’ legal options to hold an internet service provider liable for harmful or damaging content posted to the Web. Under the Communications Decency Act (CDA) – a 1996 law aimed at regulating obscene and indecent internet content – an internet service provider cannot be treated as the “publisher or speaker of any information” provided by a third party content provider, even when the service provider makes the information available to the public. Increasingly, courts are interpreting this “safe harbor” provision as establishing broad federal immunity for service providers against claims relating to third party content.

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Promotions, Sweepstakes & Contests, Social Media, User-Generated Content
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Recent Changes to Facebook Promotions Guidelines is Good News for Marketers

If you’re a business owner thinking about running a promotion on Facebook, your life just got a little bit easier. Facebook recently revised its Promotions Guidelines and is now allowing businesses to run promotions directly on their page timelines instead of requiring them to run promotions through Facebook applications (apps). That means that if you maintain an official Facebook page for your business or brand and want to run a sweepstakes or contest to publicize your business, you can now collect entries by having users post on your page, or by asking them to like or comment on a page post.

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California to Require Tracking Disclosures in Online Privacy Policies

Beginning January 1, 2014, websites and online service operators that collect consumers’ personally identifiable information will likely be forced to update their privacy policies to comply with a new law in California. Existing California law requires website and online service operators that collect personally identifiable information such as names, addresses, or social security numbers, to post privacy policies on their websites. Recently signed into law by the Governor of California, AB 370, “An Act to Amend Section 22575 of the Business and Professions Code, Relating to Consumers” will require website operators to add a section to privacy policies disclosing how they respond to “do not track” signals or other mechanisms that provide consumers a choice regarding the collection of personally identifiable information.

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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.