ADVERTISING

(Dis)Like: NFL Merchandisers Flag Facebook for Friending Counterfeiters
October 31, 2012
An officially licensed retailer of NFL merchandise recently filed a class action lawsuit against Facebook Inc., accusing the social networking giant of running advertisements for counterfeit NFL products in prominent “Sponsored” advertisements. See Inkies Sports, Inc. v. Facebook Inc., No. 1:12-cv-01095 (D.N.M. Oct. 22, 2012). Inkies Sports, Inc., which does business as Krystal’s NFL Shoppe in New Mexico and on the Internet, purports to represent all retailers and wholesalers of officially licensed NFL apparel who have been similarly harmed by the advertising of counterfeit goods on Facebook.

First Self-Regulatory Enforcement Actions Brought Against Advertisers
October 26, 2012
The Online Interest-Based Advertising Accountability Program (Accountability Program) recently released decisions regarding the online behavioral advertising practices of Kia Motors America and the ad networks servicing the company. The Accountability Program, an investigatory arm of the Better Business Bureau’s Advertising Self-Regulatory Council, regulates online behavioral advertising through vigorous independent enforcement of industry leader-developed best practices. According to the Accountability Program, several Kia ads failed to comply with the Online Behavioral Advertising (OBA) principles’ notice and choice requirements by failing to display the AdChoices Icon on their online advertising.

UPDATE: US Federal Court Denies Alleged Copyright Pirate Megaupload’s Motion to Dismiss Federal Charges
October 18, 2012
The foreign corporation behind the alleged piracy website Megaupload.com recently failed in its bid to have criminal copyright charges dismissed on the grounds that it lacked a US mailing address and therefore could not be properly served service of process. See US v. Dotcom et al., No. 1:12-cr-00003 (E.D. Va. Oct. 5, 2012). In denying Megaupload Limited’s motion, a federal judge held that foreign entities cannot avoid US criminal prosecution by simply failing to obtain a US address.

FDA Continues Crackdown Against Cosmetic/Cosmeceutical Companies
October 17, 2012
FDA is continuing its crackdown against companies that are marketing cosmetics with claims of biologically-enhanced benefits. Yesterday, FDA publicly released two more Warning Letters that it issued in connection with its crackdown. This time, FDA went after Avon and a smaller company called Bioque Technologies due to allegedly objectionable claims the Agency found on each company’s website. This brings the total number of Warning Letters FDA issued to cosmetic companies (including some of the world’s largest) to six in a period of just one month. Such action clearly signals one of the most significant enforcement crackdowns against the cosmetics industry since the inception of the Federal Food, Drug, and Cosmetic Act.

FTC Releases Revised “Green Guides”
October 3, 2012
As the leaves begin turning colors for the fall, the Federal Trade Commission (“FTC”) is turning green. Specifically, on October 1st, the FTC released its revisions to its Guides for the Use of Environmental Marketing Claims (commonly known as “Green Guides”). As you may recall from our earlier alert, the FTC previously released a request for public comments for its proposed revisions to the Green Guides. After reviewing thousands of public comments, the FTC has now released the revised Green Guides.

DATA SECURITY & PRIVACY

Operator of Celebrity Fan Sites Must Pay for COPPA Violations
November 1, 2012
The operator of fan websites for celebrities including Justin Bieber, Rihanna, Demi Lovato, and Selena Gomez has agreed to settle with the Federal Trade Commission (FTC) over alleged violations of Children’s Online Privacy Protection Act (COPPA) and the COPPA Rule. COPPA requires website operators to notify parents and obtain parental consent before collecting personal information from children under the age of 13.

FTC Reviewing Comments Addressing Proposed COPPA Rule Revisions
October 31, 2012
Several industry trade groups have objected to aspects of the Federal Trade Commission’s (FTC) current proposed revisions to the Children’s Online Privacy Protection Act (COPPA) rule. Among these trade groups is the Promotion Marketing Association (PMA) whose comments argued that the FTC should make several revisions.

ENTERTAINMENT

Second Circuit to Consider Appeal in Aereo Case
October 31, 2012
In March 2012, a group of networks — including Fox Television Stations, Inc., Univision Television Group, and American Broadcasting Companies, Inc. — sued Aereo, Inc. (Aereo), a subscription service that provides access to broadcast television over the Internet to users’ computers and mobile devices, for copyright infringement in the U.S. District Court for the Southern District of New York. As previously discussed by Arent Fox, in September, the networks appealed the District Court’s dismissal of their motion for preliminary injunction on the ground that Aereo’s services did not violate the public performance right granted under the Copyright Act. Aereo recently filed is reply brief on October 19, 2012.

UPCOMING EVENT
FTC to Host Event Regarding Collection of Internet Users’ Information
The FTC recently announced that it will be hosting a workshop on December 6, 2012, to “explore the practices and privacy implications of comprehensive collection of data about consumers’ online activities.” As demonstrated through the Equifax action, the FTC is increasing its focus on data brokers, companies that collect and compile consumer information to create profiles. The workshop is viewed as a follow up to the FTC March 2012 privacy report which called on companies handling consumer information to implement safeguards such as the FTC’s recommendations to incorporate privacy by design, simplified choice, and greater transparency to consumers about data collection and use. The workshop is sure to provide an interesting discussion.