ADVERTISING

WOMMA Releases Social Media Marketing Disclosure Guide
October 1, 2012
The Word of Mouth Marketing Association (WOMMA) recently released an updated Social Media Marketing Disclosure Guide. The purpose of the guide is to help marketers to comply with the Federal Trade Commission’s Endorsement Guidelines, which require companies to disclose material connections between the company and a person endorsing its products or services.

Made in China: German Trade Association Goes After Knockoff Knives
September 24, 2012
On September 11, 2012, the Chamber of Industry and Commerce Wuppertal-Solingen-Remscheid (the “Chamber”) filed an action before the U.S. District Court for the Southern District of Florida against Martha Stewart, Martha Stewart Living Omnimedia, Inc. (“MSLO”), Emeril Lagasse, HSNi, LLC (the “Home Shopping Network”) and SED International Holdings, Inc. for willful infringement, unfair competition, false advertising, and false designation of origin of the Chamber’s SOLINGEN certification mark.

Second Circuit Rules that Arbitration Clause Contained in Confirmation Email Is Unenforceable for a Lack of Notice
September 21, 2012
The Second Circuit recently ruled that an arbitration clause is unenforceable for a lack of notice where it is contained in an online membership program’s terms and conditions, and those terms are emailed to a consumer after he or she has already enrolled in the program. See Schnabel v. Trilegiant Corp., No. 11-1311 (2d Cir. Sept. 7, 2012). In affirming the district court’s denial of the defendant marketer’s motion to compel arbitration, the Second Circuit explained that the emails at issue created neither actual nor inquiry notice that additional terms applied to the membership agreement that customers had already entered. Accordingly, the court held that the members could not be bound by these terms, and that their failure to affirmatively act to cancel their memberships could not, alone, constitute assent.

NLRB Invalidates Costco’s Social Media and Blanket Confidentiality Policies
September 19, 2012
In its first ruling on the issue, a three member panel of the National Labor Relations Board (the NLRB or Board) has invalidated a social media policy at Costco's Milford, CT facility because it believes it is overbroad and violates employees' rights under Section 7 of the National Labor Relations Act (NLRA) to engage in protected concerted activity. The Board also invalidated a broad rule that prohibits the distribution of unauthorized material and the discussion of confidential information among employees.

Court Dismisses Defamation Lawsuit Against TripAdvisor’s “Dirtiest Hotels”
September 6, 2012
The U.S. District Court for the Eastern District of Tennessee recently granted TripAdvisor LLC’s (“TripAdvisor”) Motion to Dismiss the defamation lawsuit filed by Plaintiff Kenneth M. Seatons’s Grand Resort Hotel & Convention Center in Pigeon Forge, Tennessee (“Grand Resort”).

DATA SECURITY & PRIVACY

Beware the UK Cookie Compliance Monster
October 1, 2012
The Information Commissioner’s Office (“ICO”) in the United Kingdom is now stepping up its enforcement of the EU Cookie Directive. Under the Cookie Directive, website operators are obligated to obtain informed consent from European residents before placing most cookies, including web beacons and other online technologies, on a visitor’s computer. Although the law has been compulsory in the UK since May of this year, not many website operators have complied. In response, the ICO’s group manager for business and industry has announced that the ICO will begin stepping up its enforcement of the Directive.

Mobile Apps Must Comply with Privacy and Truth-in-Advertising Laws
September 17, 2012
The Federal Trade Commission (FTC) recently released guidance for mobile app developers. Specifically, on September 5, 2012, the FTC took a step to address the growing mobile application industry by releasing non-binding guidance for mobile app developers intended to help them navigate advertising and privacy concerns as they develop and market mobile applications to consumers. The guidance incorporates an overview of existing laws and FTC policy, and includes a number of general guidelines that mobile app developers should consider when creating and providing the apps to consumers.

ENTERTAINMENT

Who Owns Superman? Copyright Lawsuit Over Superman Comics Continues
September 12, 2012
Litigation is ongoing in California federal courts between the heirs of Joe Shuster, the co-creator of the famous Superman comic book, and DC Comics, the division of Warner Bros. that held the rights to the Superman comics for more than 60 years. The case, which began in 2010, involves a convoluted series of copyright agreements and near agreements, complete with claims of unethical conduct by the heirs’ attorney, Marc Toberoff, a Hollywood insider. At issue presently is the effect of a 1992 agreement that, according to DC Comics, forfeited the heirs’ termination/clawback rights with respect to the Superman copyrights. Ultimately, the court will decide who owns the copyrights in the Superman comics, a piece of intellectual property that is worth millions.