Marketing Law Commons^™

Regulating Tobacco Advertising And Promotion: A "Commerce Clause" Overview For State And Local Governments, Kathleen Dachille

Faculty Scholarship

On June 22, 2009, President Barack Obama signed into law the Family Smoking Prevention and Tobacco Control Act, giving the U.S. Food and Drug Administration (FDA) comprehensive authority to regulate the manufacturing, marketing, and sale of tobacco products. The new law represents the most sweeping action taken to date to reduce what remains the leading preventable cause of death in the United States.

To help you understand the potential ways in which state and local regulation of tobacco product marketing and promotion might be limited by the U.S. Constitution’s Commerce Clause, the Tobacco Control Legal Consortium, a collaborative network of …

Consumer Protection In The Eco-Mark Era: A Preliminary Survey And Assessment Of Anti-Greenwashing Activity And Eco-Mark Enforcement, 9 J. Marshall Rev. Intell. Prop. L. 742 (2010), Eric L. Lane

UIC Review of Intellectual Property Law

We stand at the dawn of the Eco-mark Era—a period in which green branding, advertising environmentally friendly products and services, and touting sustainable business practices will be pervasive and profitable. However, with the rise of green branding comes the temptation of greenwashing—making false or misleading claims regarding environmentally friendly products, services or practices. Instances of greenwashing appear to be on the rise, but we are seeing more activity to combat greenwashing by public enforcement and consumer class actions. In addition, green brand owners are protecting and enforcing their eco-marks, and trademark litigation involving green brands is becoming commonplace. How is …

The Effects Of "Blue Magic": A Call To Punish Criminal Organizations That Benefit From The Use Of Trademarks, 9 J. Marshall Rev. Intell. Prop. L. 912 (2010), Thomas J. Kelley

UIC Review of Intellectual Property Law

Throughout history, criminal organizations have produced, packaged, transported, marketed, and sold illegal products. These organizations and their individual members can be punished for all of the steps in this process, except one: marketing. These groups routinely market their products with trademarks affixed to the illegal products they sell, and benefit from these trademarks the same way a company like the Coca-Cola Company benefits from its trademarks. Criminal organizations should not be free to use trademarks without fear of any additional punishment for doing so. Congress and the United States Sentencing Commission should look at this issue to determine an appropriate …

Consumer-Generated Media And Advertising—Are They One And The Same? An Analysis Of The Amended Ftc Guides Concerning The Use Of Endorsements And Testimonials In Advertising, 10 J. Marshall Rev. Intell. Prop. L. 206 (2010), Jessica Godell

UIC Review of Intellectual Property Law

The advertising industry as well as the endorsements and testimonials that support advertising have been expanding into new mediums for years. As a result of this continual growth, the Federal Trade Commission (“FTC”) recently amended the FTC Guides Concerning the Use of Endorsements and Testimonials in Advertising (“The Guides”). The FTC, which sought to apply The Guides to consumer-generated media for the very first time, had not amended The Guides prior to these revisions in three decades. As a result, the changes garnered a number of mixed reactions from the media, consumers and the advertising and legal industries. Under the …

Twitter: New Challenges To Copyright Law In The Internet Age, 10 J. Marshall Rev. Intell. Prop. L. 231 (2010), Rebecca Haas

UIC Review of Intellectual Property Law

Twitter is part of the new wave of internet communication. It is unique because messages sent via Twitter are limited to 140 characters. Many of these messages are about mundane details of daily life, but some are creative, even literary, and may qualify for copyright protection. The problem,then, is not necessarily whether a Tweet can qualify for copyright protection, but how that protection is enforced. Current infringement policies and procedures are not designed to effectively handle copyright infringement on the internet. Internet infringement is widespread and not easy to monitor or regulate, therefore there is a need for a regulatory …

Google Analytics: Analyzing The Latest Wave Of Legal Concerns For Google In The U.S. And The E.U., 7 Buff. Intell. Prop. L.J. 135 (2010), Raizel Liebler, Keidra Chaney

UIC Law Open Access Faculty Scholarship

The next wave of concern regarding Google involves web analytics. Web analytics is the measurement, collection, analysis, and reporting of Internet data for the purposes of understanding and optimizing web usage. The concerns of web analytics use touches on issues of online user privacy, government use of personal information, and information on website user activity. While Google Analytics is not the sole web analytics product on the market, it is widely used by corporate, non-profit, and government organizations. The product has been reported to have a 59% market share among web analytics vendors in a 2008 study.

Web analytics technology …

Balancing Consumer Protection And Scientific Integrity In The Face Of Uncertainty: The Example Of Gluten-Free Foods, Margaret Sova Mccabe

Law Faculty Scholarship

In 2009, gluten-free foods were not only "hot" in the marketplace, several countries, including the United States, continued efforts to define gluten-free and appropriate labeling parameters. The regulatory process illuminates how difficult regulations based on safe scientific thresholds can be for regulators, manufacturers and consumers. This article analyzes the gluten-free regulatory landscape, challenges to defining a safe gluten threshold, and how consumers might need more label information beyond the term "gluten-free." The article includes an overview of international gluten-free regulations, the Food and Drug Administration (FDA) rulemaking process, and issues for consumers.

The Multienforcer Approach To Securities Fraud Deterrence: A Critical Analysis, Amanda Rose

Vanderbilt Law School Faculty Publications

Participants in the U.S. capital markets can be sued for securities fraud by a mishmash of enforcers, including the SEC, class action plaintiffs, and state regulators. Does this multi-enforcer approach make sense from a deterrence perspective? This Article suggests that the answer is probably no. Although in theory there are conditions under which a multi-enforcer approach would promote optimal deterrence, it is unclear at best that those conditions exist in the United States. And further empirical research, while warranted, is unlikely to resolve the issue definitively. The status quo tends to persevere in the face of this sort of irreducible …

Regulating The Invisible: The Case Of Over-The-Counter Derivatives, Colleen M. Baker

Journal Articles

In this Article, I focus on the regulation of the over-the-counter (OTC) derivative markets. I argue that current reform proposals and draft legislation fall short of constructing the linked domestic and international frameworks needed to successfully regulate the OTC derivative markets. The purpose of my Article is to propose and defend such a framework. Because of the inseparability of the domestic and international aspects of this issue, I argue that in addition to increased prudential supervision and regulation, the regulation of OTC derivative markets requires interwoven domestic and international systems for regulatory cooperation. This recommendation has two parts. First, Congress …

Attention Must Be Paid: Commercial Speech, User-Generated Ads, And The Challenge Of Regulation, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

This Article examines the dynamics that drive advertisers to push into new formats, and the law’s ability to regulate them. I argue that it will remain possible, and constitutional, to identify advertising and subject it to prohibitions on false and misleading claims, even for ads in unconventional formats. The article also addresses the ways in which regulators were caught off-guard by these new formats. In particular, Section 230 of the Communications Decency Act, which frees online service providers and users from liability for content generated by other users, poses some unanticipated barriers to regulating advertising. Yet despite section 230’s provisions, …

Unfair Competition And Uncommon Sense, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

This article discusses Mark McKenna’s Testing Modern Trademark Law’s Theory of Harm as an important step forward in challenging trademark expansionism, going back to basics and asking us to assess for truth value several propositions that now seem so self-evident to lawyers and judges as to not require any empirical support at all. Like McKenna, the author believes that if the law looked for the evidence behind present axioms of harm, it would not find much there. McKenna and the author share an interest in empirical evidence on marketing and a desire to bring its insights to trademark law. But …

Jurisdiction And Internet In Relation To Commercial Law Disputes In A European Context, Ulf Maunsbach, Patrik Lindskoug

Ulf Maunsbach

No abstract provided.

Regulating Online Buzz Marketing: Untangling A Web Of Deceit, Robert Sprague, Mary Ellen Wells

Robert Sprague

During the past fifteen years, the Internet has swelled into its own virtual world of commentary, opinion, criticism, news, music, videos, gaming, role playing, shopping, banking, finance, and digital commerce. Coupled with the growth of blogs and social networking sites, millions of Americans appear willing to share online their own thoughts and experiences regarding products, services and companies. In response to the public’s interest, companies have begun to rely more heavily in recent years on word of mouth marketing, often referred to as “buzz marketing,” a technique that attempts to generate conversations among and with current and potential customers. Marketers …