ADVERTISING

Skechers Pays Up and Agrees to “Shape Up” Its Deceptive Health & Fitness Claims
May 30, 2012
Skechers USA recently agreed to pay $40 million to settle charges brought against it by the Federal Trade Commission (FTC) based on the company’s claims that its toning shoes could provide beneficial weight loss and muscle toning results to consumers. In its complaint, the FTC charged Skechers with making false and deceptive claims about the health and fitness benefits that consumers could receive by using their toning shoes. In response, the company has agreed to settle by paying $40 million, much of which will be used to fund an account for consumer reimbursements.

Marketers, Verizon Await FCC Input Regarding TCPA
May 25, 2012
Marketers are currently awaiting the outcome of the SoundBite petition regarding the practice of sending confirmation messages in response to STOP messages. As you may recall, several lawsuits were recently filed regarding the sending of the unsolicited messages — all based on the Telephone Consumer Protection Act’s (TCPA) ban on unsolicited, auto-dialed text messages — despite the fact that the Mobile Marketing Association’s (MMA) best practices guidelines direct marketers to send such messages. This is a situation where companies are getting in trouble for doing what they have been directed to do.

Complying with the New Jersey Gift Card Law
May 23, 2012
New Jersey will soon begin to claim the unused value of those gift cards that have been dormant for two years where the cards were purchased by or for a New Jersey resident. Merchants that have issued what New Jersey calls “stored value cards” with a face value over $250,000 in the preceding year will have to comply. A “stored value card” is defined to include “paper gift certificates,” “electronic gift cards” and the like, where those cards are “pre-funded and the value … is reduced upon each redemption.”

George Clooney and Julia Roberts Sue Over the Unauthorized Use of their Images in Commercial Advertisements
May 6, 2012
Megastars George Clooney and Julia Roberts (“Plaintiffs”) recently joined forces to sue two audio-visual companies for the unauthorized use of their images in connection with the sale of audio-visual equipment. Clooney and Roberts allege that Digital Projection Inc., Beyond Audio Inc., and twenty unnamed individuals and/or entities (collectively, “Defendants”) “prominently used large photographs of Plaintiffs in Defendants’ advertising, marketing, and promotions including print advertisements…commercial websites…printed brochures, newsletters, and ‘e-mail blasts’ distributed to customers and prospective customers, and within Defendants’ large video displays at major international trade shows.”

UPCOMING EVENT
HBA Global Expo
Anthony Lupo will be speaking at the HBA Global Expo on June 20th in New York City. His session is titled The Legal Side of Consumer Engagement and will examine the impact of legal and regulatory requirements companies must consider when advertising to consumers. He will be joined by Erik Lautier of Lacoste.

DATA SECURITY & PRIVACY

FTC Demonstrates a Continued Focus on Cookie Compliance
May 24, 2012
It has been reported that Google is currently negotiating with the Federal Trade Commission (FTC) regarding the size of the fine it will have to pay as a result of its alleged use of cookies to override the privacy protections that are incorporated in Apple Inc.’s Safari Internet browser.

Lesson in Value — Personal Information as a Resource
May 23, 2012
Despite Apple, Inc.’s best efforts, a federal judge in the Northern District of California has refused to dismiss the amended complaint filed against them due to the company’s practice of tracking users using the unique device identifiers (UDID) connected to every iPhone and iPad sold. As you may recall from our earlier alert, the judge dismissed the claims last year due to failure to plead standing because the claims of harm were too generalized. The plaintiffs have now amended their claims to demonstrate their Article III standing to bring the case in federal court. In essence, the plaintiffs have claimed that the case "boils down to personal privacy in the form of control over personally identifiable information and data resources.”

UPCOMING EVENT
Ethics and Compliance Conference
Sarah Bruno and Anthony Lupo will be speaking at the Society of Corporate Compliance and Ethics West Coast Regional Ethics and Compliance Conference on June 22nd in San Francisco. Their session is titled “Game-Changing Developments in Privacy and Data Breaches.” They will be joined by Tammy Brandt of Service Mesh Inc. and Karl Pedersen of Willis Americas Administration.

ENTERTAINMENT

Digitally Transmitted Broadcasts Continue to Raise Copyright Issues: Aereo’s “Watch Now” Service Under Fire
May 30, 2012
Aereo Inc., a company that provides access to live television broadcasts for display on computers and mobile devices, is facing two copyright infringement lawsuits in the US District Court for the Southern District of New York. In March 2012, a number of networks including Fox Television Stations, Inc., Univision Television Group and American Broadcasting Companies Inc., sued Aereo for copyright infringement and unfair competition. In response, Aereo counterclaimed, asking the court to declare that its services are legally analogous to using an antenna with a television, and therefore noninfringing. The court recently dismissed the networks’ unfair competition claim as being precluded by the established protections of the Copyright Act.

Tebowmania: Clash Over Sale of NFL-Licensed Apparel Results in Settlement Between Nike and Reebok
May 21, 2012
Nike Inc. and Reebok Int’l Ltd. recently settled a high-profile dispute over the sale of NFL apparel bearing the name and jersey number of star New York Jets quarterback Tim Tebow. Nike had filed suit against Reebok in late March, alleging that Reebok’s sales of Tebow jerseys following his unexpected trade to the New York Jets was in breach of Reebok’s recently expired licensing agreement with NFL Players Inc. and violated Nike’s rights under its new exclusive licensing deal with the NFL. A federal judge issued a temporary restraining order blocking the sale of Reebok-brand NFL apparel bearing Tebow’s name and number, which it later extended into a preliminary injunction after finding that Nike had proven a likelihood of success on the merits of the underlying suit.

Olympians Sue Samsung Over the Unauthorized Use of Their Names and Likenesses in Connection with a Facebook Application
May 15, 2012
Eighteen of our nation’s greatest athletes, including Olympians Mark Spitz, Greg Louganis, Jackie Joyner-Kersee, Janet Evans, Dara Torres, and Amanda Beard, have joined together to sue the Samsung Corporation and its related entities (Samsung) over the alleged misappropriation of their names and likenesses in connection with a Facebook application. The plaintiffs allege that Samsung used their names, images, and background information without permission on Samsung’s “US Olympic Genome Project” Facebook application, in “an attempt to link plaintiffs to consumers.”

Seventh Circuit Case Regarding Copyright Liability for Embedding Infringing Videos Brings Major Industry Players to the Table as Amici
May 1, 2012
What started as a copyright litigation between two relatively minor parties has morphed into an appeal before the US Court of Appeals for the Seventh Circuit that has seen amici briefs from the likes of the Motion Picture Association of America (MPAA), Google, and Facebook.

UPCOMING EVENT
International Association of Amusement Parks & Attractions Asian Attractions Expo
Sarah Bruno will speak at the Safety Institute at the International Association of Amusement Parks & Attractions Asian Attractions Expo in Hong Kong on June 5th. The discussion will cover the safety issues involved in counterfeit goods in the attractions industry.