Archive for February, 2005

Big Corp.’s Little Secret: dilution law before Congress

Prof. Eric Goldman over at the Technology & Marketing Law Blog posts this comment on the recently introduced Trademark Dilution Revision Act of 2005 (HR 683). The most notable (pro plaintiff) provisions in the law include: overturning Moseley v. Secret Catalog Inc. (a.k.a. the “Victoria’s Secret case” or the “Victor’s Little Secret” case) and buttressing those same rights holders misappropration claims when an infringer willfully trades on the recognition or reputation of a famous mark. Although many of these issues dovetail into other federal infringement actions, rights holders — at least those more astute than Victoria’s Secret — currently depend on state unfair competition and dilution laws to support such claims.

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February 24, 2005 at 6:00 pm Leave a comment

Dell accused of pulling a bait-and-click?

A California law firm has filed a class action lawsuit against Dell, the world’s leading direct-to-consumers computer retailer, claiming “bait and switch” practices, false advertising, fraud and deceit in sales and advertising, and breach of contract. The crux of the case is that Dell allegedly advertised low cost computers that were frequently not available for purchase. More on the case can be found on CNet.

February 23, 2005 at 8:00 pm Leave a comment

An End to Court Fees? Blockbuster wishes it was so

In yet another knock on Blockbuster’s “End to Late Fees” ad campaign, New Jersey Attorney General Peter Harvey has filed a lawsuit alleging that the company has violated the state’s Consumer Fraud Act and Merchandise Advertising Regulations by not disclosing that videos that are not returned within a certain time are converted to purchases. More on this later.

February 22, 2005 at 6:00 pm 1 comment

Fat congressmen say fat kids should control themselves

Forbes has noted that a priority of the Republican Congress may be to combat the french fry terrorism of America’s tort lawyers. In March 2004, the House passed the Personal Responsibility in Food Consumption Act. The Senate has yet to order the bill to the floor — obviously because there are more fat senators who would rather order a pizza to the floor — but Forbes believes that the recent decision by the Second Circuit allowing a suit by two chub-a-lub teens from New York to move forward has ignited a flame broiled fire under Congress’ rear. The Advertising Law Blog has previously discussed the McDonald’s case here. I am left with a couple questions here. First, of the two senators from Massachusetts, Ted “The Hamburgerler” Kennedy and John “Mr. Teresa Heinz” Kerry, who opposes this bill more? I think you have to go with Ted, who brings new meaning to Washington pork. Second, how did these fools in the House come up with such a horrible name? Where is my cheesy (mmm… cheese burger) acronym? How about the FFATT Act? The French Fries Against Tort Terrorists Act. Okay, I need to work on that one.

February 11, 2005 at 6:00 pm Leave a comment

FTC rejects product placement regulations

Earlier today, the Federal Trade Commission (“FTC” or the “Commission”) rejected a petition from Commercial Alert, a consumer watchdog, asking that the Commission require that paid product placements in television programs be clearly labeled.# The Commission does not believe that such advertisements make objective claims that can be regulated. According to Advertising Age, the FTC stated that, “In most instances, the product placement appears on-screen or is mentioned, but the product’s performance is not discussed. Therefore, the rationale for disclosing that an advertiser paid … is absent.” However, the Commission did state that infomercials that make objective claims without disclosing that the programs are advertisements are deceptive. The FTC also stated that it will reexamine disclosure requirements for paid spokespersons who appear on news programs. Commercial Alert had complained about an appearance by Lauren Bacall on NBC’s “Today Show” where Bacall discussed a drug produced by a company she was paid to endorse. # Registration required for some content on linked website.

February 10, 2005 at 6:00 pm Leave a comment

Just when you thought it was safe to say @$&!%!

Yesterday, the House Energy and Commerce Committee approved a bill that could raise fines for broadcasts of indecent material to as much as $500,000. The current maximum fine is $32,500, but the Senate has already approved a new maximum of $325,000 with a $3 million cap for continuing violations. The House bill would also require that the Federal Communications Commission (“FCC”) consider revoking a television or radio stations license after three violations. Ironically, the FCC has recently given indications that its policing of indecency violations may be returning to a reasonable level as discussed in this post here. However, if Congress has anything to say about this trend, the Commission will be right back to its over zealous ways. Watch out, Dr. Phil, you’re next!

February 10, 2005 at 8:00 am Leave a comment

SEXUALLY-EXPLICIT: Not really… how’s FTC-EXPLICIT?

The Federal Trade Commission (“FTC”) has announced that it has reached a settlement with an adult website operation that used third-party affiliates to send spam to consumers with deceptive subject lines like “Payment declined.” The body of the e-mails contained sexually explicit advetisements for Sobonito Investments, Ltd.’s website. The agreement requires that Sobonito comply the CAN-SPAM Act, which forbids deceptive subject lines in advertisements and requires that adult content be labeled “SEXUALLY-EXPLICIT:” in the subject line.

The settlement agreement can be read here. The FTC’s press release can be read here. A post by Prof. Eric Goldman on the agreement can be read here.

February 9, 2005 at 6:10 pm Leave a comment

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