The past several months have seen several significant developments in the area of advertising law. From the floor of the US Congress to federal and state courtrooms across the country to the halls of the Federal Trade Commission, representatives, judges and regulators have unveiled a series of decisions and proposals that could have a substantial impact on advertising law.

Arent Fox’s advertising law team has been closely following these developments and has prepared a series of articles and analysis pieces, which may be found below, to help clients and businesses understand the importance of these unfolding events. Arent Fox will continue to monitor these various developments and provide updates as appropriate.

• National Advertising Division Finds that Apple Inc. Can Substantiate “World’s Greenest” Claim
  
  

  The National Advertising Division (NAD) recently found that Apple Inc. had adequate support for its claim that its MacBook line of notebook computers is the “greenest.”  Dell, Inc. challenged Apple Inc. for its express claim that its MacBook notebooks were the “world’s greenest family of notebooks.”  The NAD found that Apple Inc. could substantiate the claim, but recommended that the company change the language to make it clearer that the comparison in the advertisement is between all MacBooks and all of the notebooks manufactured by any given competitor.

  For the full alert, click here.

• Nestlé Sued for Violating Publicity Rights of Model Used in Advertising
  
  

  In 1986, Nestlé developed a marketing campaign for its coffee featuring the model Russell Christoff for use only in Canada.  In 1997, Nestlé USA redesigned the Taster’s Choice product label for use in the United States and other countries, and used Christoff’s photo on its new label without first investigating whether the company had the right to use the photo.  Christoff first learned of the use in 2002, and he brought a claim against the company for violation of his publicity rights shortly thereafter. The California Supreme Court recently held in the case that California’s “single publication rule” applies when advertisers are charged with violating someone’s publicity rights. The question the California court did not decide, and the question that is critical to advertisers, is whether continuous use of a single product label qualifies as a “single publication” under the rule.

  For the full alert, click here.

• Owner of Route 66 Trademark Sues Penthouse Over Adult Movie Title
  
  

  FriendFinder Networks Inc., the parent corporation of adult film producer Penthouse Media Group, Inc., successfully defended itself against trademark infringement claims related to the title of one of its films.  Roxbury Entertainment, which owns the trademark rights to the 1960s-era TV show Route 66, brought suit against Penthouse Media Group when the company released their adult film Route 66 on DVD.

  For the full alert, click here. 

• Children’s Clothing Company Fined by FTC for Improper Collection and Use of Personal Information
  
  

  The Federal Trade Commission recently ordered Iconix Brand Group, Inc. to pay a $250,000 fine for violating the Children’s Online Privacy Protection Act and the FTC Act.  Iconix Brand Group, Inc., the owner of the Mudd, Candie’s, Bongo, and OP clothing lines, required children on many of its brand-specific Web sites to provide personal information, such as full name, e-mail address, zip code, and in some cases mailing address, gender, and phone number – as well as date of birth – in order to receive brand updates, enter sweepstakes contests, and participate in interactive brand-awareness campaigns.  Iconix collected and stored the personal information of children without first notifying parents or obtaining their consent as required by COPPA.

  For the full alert, click here. 

• Pottery Barn Sued for Collecting E-mail Addresses During Credit Card Purchases
  
  

  The California Court of Appeal for the Fourth District recently held that a class action lawsuit against Pottery Barn, Inc. alleging unauthorized collection of personal information can proceed to trial.  A class of consumers alleged that Pottery Barn, Inc. violated the California Song-Beverly Credit Card Act by requesting that shoppers provide their e-mail address when purchasing products with a credit card.

  For the full alert, click here.

• House Passes Bill Requiring Companies to Notify Consumers/FTC of Breaches of Electronically Stored Personal Information
  
  

  The US House of Representatives recently passed The Data Accountability and Trust Act (HR 2221).  The important features of the bill include the preemption of state law and the requirement that the FTC receive notification of electronic data breaches rather than the respective state attorneys general.  Currently, almost every state and the District of Columbia have enacted laws governing data security and breach notification laws.  Passage of the bill would simplify compliance and notification requirements for companies operating in multiple states.

  For the full alert, click here.

• FTC Investigates Sears Use of Software that Tracks Customer Online Behavior
  
  

  Online retailers may have to make additional disclosures when they ask customers to download online behavioral tracking software, the Federal Trade Commission recently announced.  In a recent decision involving Sears Holdings Management Corporation, the FTC announced that companies may engage in deceptive trade practices if their online data collection practices conflict with the overall impression the companies make to consumers.  Full disclosure in end user license agreements may not be enough disclosure when companies use online behavioral tracking.

  For the full alert, click here.

• Privacy Groups File Complaint Against Facebook.com with the FTC
  
  

  The Electronic Privacy Information Center (EPIC) and other advocacy groups filed a complaint with the Federal Trade Commission (FTC) against Facebook.com alleging that recent changes to the social network’s privacy settings are unfair and deceptive trade practices.  EPIC has asked that the FTC compel Facebook.com to restore its previous privacy settings and to make its data collection policies clearer and more comprehensible.

  For the full alert, click here. 

• Federal Agencies Finalize Model Financial Privacy Notice After Four-Year Review
  
  

  The Federal Trade Commission and seven federal agencies recently released a model privacy notice which, if adopted by financial institutions, provides a safe harbor under the Gramm-Leach-Bliley Act.  The Gramm-Leach-Bliley Act has required that financial institutions provide customers clear and conspicuous notice about its privacy policies and practices since 2001; however, the privacy notices issued often were long and complex.  Congress passed a law in 2006 directing the FTC and federal financial regulators to draft a plain language, model privacy notice.

  For the full alert, click here.

• Revised Facebook.com Guidelines Complicate Promotion and Administration of Contests and Sweepstakes
  
  

  Over the past year, Facebook.com has increased their control over how companies can use the site to promote and administer their promotions.  Facebook.com recently posted revised guidelines to govern how companies can publicize or administer sweepstakes and contests on the site.

  For the full alert, click here.