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
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FTC Says Retailers Bamboozled Customers with Misleading “Bamboo” Products

What’s the News?

The Federal Trade Commission has a reached a settlement agreement with several major retailers, including Nordstrom, Bed Bath & Beyond, and JCPenney, over claims that they improperly labeled and advertised rayon products as being made of bamboo. According to the FTC, rayon—a chemically manufactured fiber that is sometimes created from bamboo—is not the same as bamboo, making the companies’ “bamboo” claims improper. In addition to injunctive relief, the companies have agreed to pay over $1 million dollars under the settlement. 

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Media & Entertainment
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“World of Warcraft” Creator Takes Battle to Court over Game’s Characters

What’s the News?

A federal judge in the Northern District of California recently dismissed a complaint in which video game producers claimed that characters from their games had been misappropriated by competing developers, in violation of copyright law. While characters are, in some cases, entitled to copyright protection, the court held that plaintiffs in such cases must state with considerable specificity which characters were allegedly infringed, and why those characters are copyrightable. General allegations of idea theft, the court explained, will not survive a motion to dismiss. 
 

Background

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Publicity Rights
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Imitation the Sincerest Form of Flattery? Court Dismisses Video Gamer’s Right of Publicity Claim

What’s the News? 

A judge in New Jersey federal district court recently dismissed a lawsuit brought against The Cartoon Network by a renowned video gamer. In particular, the plaintiff claimed in Mitchell v. The Cartoon Network, Civ. No. 15-5668 (D.N.J., November 20, 2015), that the network violated his right of publicity by depicting an animated version of him, without permission, in an episode of The Regular Show. The court, however, disagreed, holding that the network’s representation of the plaintiff was a parody entitled to First Amendment protection.

 

Background on the Case

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E-Commerce
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Legal Rollercoaster in New York for DraftKings and FanDuel

After a difficult November, daily fantasy sports (DFS) operators will need to buckle up for an even more challenging road ahead. Things looked grim for the DFS industry last month, after New York Attorney General Eric T. Schneiderman delivered cease-and-desist orders to FanDuel and DraftKings, ordering them to stop taking bets in New York. Though the DFS industry had faced obstacles before, this was the strongest blow against them, especially in the state where FanDuel is headquartered, and from which the largest number of DFS players hail. But both sites vowed to fight back, and have been embroiled in a tough legal battle ever since.

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Advertising, User-Generated Content
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After SCOTUS Declines CDA Defamation Appeal, Yelp Gives Court 5 Star Rating

The Lead

The Supreme Court gave Yelp and other interactive computer service providers reason to celebrate recently when it quietly declined to hear an appeal of a case charging Yelp with defamation in connection with one of the consumer reviews posted on the site. In refusing to hear the appeal, the Court left in place a Fourth Circuit decision that held that interactive computer service providers like Yelp cannot be held legally responsible for information created and developed by third parties.
 

The Facts

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Health Privacy & Security, Mobile Marketing, Advertising
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National Advertising Initiative Updates Rules for Data Collection on Mobile Apps
The Network Advertising Initiative (NAI), an advertising industry trade group for third-party advertisers, recently released the 2015 update to its Mobile Application Code. The App Code is a set of self-regulatory principles governing the data collection practices of NAI member companies in the context of mobile app advertising. The purpose of the 2015 update is to clarify certain obligations for NAI member companies under the App Code. 
 

The App Code

 
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Advertising
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Nordstrom and Jeans Company Pay $4M to Settle “Made in USA” Claim

On Monday, November 30, 2015, Nordstrom and denim manufacturer AG Adriano Goldschmied filed a motion to approve a settlement in California federal court, agreeing to pay more than $4 million to settle a consumer class action suit that accused them of falsely labeling jeans as “Made in USA.” The settlement was agreed upon in October 2015 after over a year of intense litigation.
 
Plaintiffs brought the case against both the manufacturer, AG, and the retailer that sold AG jeans, Nordstrom, and alleged various claims under the California consumer protection laws and business and professions code. The class action claimed that AG jeans’ fabric, thread, buttons, rivets, and certain subcomponents of the zipper assembly were manufactured outside of the United States.
 

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Advertising, E-Commerce, Mobile Marketing, Privacy & Security - US & Abroad
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Cross-Device Tracking: The New Frontier in Interest-Based Advertising

What’s the News?

The Federal Trade Commission recently hosted a public hearing on “cross-device tracking.” The agency invited representatives from the advertising industry, academia, and consumer protection groups for a discussion on this increasingly prevalent data collection practice. The hearing shows that cross-device tracking is clearly an area of interest for the agency, and signals the possibility of increased scrutiny from regulators. Consequently, advertisers engaged in cross-device tracking should review their practices to ensure compliance with applicable laws and self-regulatory principles.  
 

What is Cross-Device Tracking?

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Privacy & Security - US & Abroad
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European Data Authorities React to Safe Harbor Invalidation

What’s the News?

Following the European Court of Justice’s decision to invalidate the safe harbor framework, multinational businesses have been clamoring for guidance regarding how best to comply with European Union data protection laws while transferring data from the EU to the United States. While regulators are actively working to develop a “Safe Harbor 2.0”—with some speculating that draft legislation may be finalized as early as mid-December 2015— no such framework has been released. Further, it has been widely recognized that all data transfers taking place based upon a previous reliance on the framework are now in violation of EU law unless a separate transfer rationale exists. Given these concerns, several EU data protection authorities (DPAs) have spoken out with some guidance.

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Advertising
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Is the Price Right? Nordstrom Facing Class Action Over “Compare At” Pricing

What’s the News?

A federal judge for the Southern District of California recently held in Branca v. Nordstrom, Inc. that a class action could proceed with claims that Nordstrom made deceptive savings claims at a Nordstrom Rack store. In particular, the plaintiff alleged violations of California state law, claiming that Nordstrom listed higher “Compare At” prices next to sale prices, when the items had never been offered at that higher price by Nordstrom or other retailers.
 

Background on the Case

 
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