Marketing Law Commons^™

Marketing, Other Intangibles, And Output Growth In 61 United States Industries, Leo Sveikauskas, Rachel Soloveichik, Corby Garner, Peter B. Meyer, James Bessen, Matthew Russell

Faculty Scholarship

Experts in the System of National Accounts (SNA) recently considered whether marketing could be included as a capital asset in the national accounts and later recommended that marketing should be an intangible in the 2025 SNA (IMF, 2022, 2023). This paper prepares macroeconomic measures of the United States marketing stock and develops similar measures within 61 industries. We find that, from 1987 to 2020, marketing capital contributed approximately as much to output growth (0.18 percentage point per year) as R&D (0.15) or software (0.19) did. Software grew more rapidly, but marketing had a larger factor share. Marketing contributes even more …

The New Normal: Navigating Legal Challenges In The World Of Influencer Marketing & How Adr Can Help, Olivia Davis

Pepperdine Dispute Resolution Law Journal

No abstract provided.

Second Thoughts On Fda's Covid-Era Mental Health App Policy, Michael Mattioli

Articles by Maurer Faculty

As the coronavirus pandemic swept across the globe in April 2020, the US Food and Drug Administration (FDA) made an unusual decision. The agency announced that it would relax its enforcement of compliance rules for “digital therapeutics”—smartphone apps designed to address mental health disorders. The measure was a response to widely reported upticks in symptoms of anxiety, depression, and substance abuse brought on by the pandemic. As an added benefit, the agency explained, digital therapeutics could promote social distancing by removing patients’ need to visit health care providers.

This essay explores the possible lasting effects of the FDA’s temporary suspension …

All That Glitters Is Gold: The Regulation Of Hidden Advertisements And Undisclosed Sponsorships In The World Of Beauty Social Media Influencers, Ashley Luong

William & Mary Business Law Review

What happens when a trusted acquaintance is caught lying? What if these lies have influenced your purchasing decisions? In the realm of social media influencers, the line between authentic opinions and sponsored advertisements is a blurred one. Influencers have considerable marketing power over millions of followers and their brand of authenticity makes them a desirable partner to big corporations seeking to promote their products. Under current FTC regulations, the simplified rule for advertisement disclosure is to make the disclosure “clear and conspicuous” with very little guidance beyond that phrase. Influencers are uncertain how to disclose, some choosing to toe the …

A Dangerous Concoction: Pharmaceutical Marketing, Cognitive Biases, And First Amendment Overprotection, Cynthia M. Ho

Indiana Law Journal

Is more information always better? First Amendment commercial speech jurisprudence takes this as a given. However, when information is only available from a self-interested and marketing-savvy pharmaceutical company, more information may simply lead to more misinformation. Notably, doctors are also misled. This can result in public health harms when companies are promoting unapproved uses of prescription drugs that the Food and Drug Administration (FDA) has approved for other purposes—commonly referred to as “off-label” uses. Contrary to judicial presumptions, as well as the presumptions of some doctors and scholars, doctors are not sophisticated enough to always discern what is true versus …

Will Artificial Intelligence Eat The Law? The Rise Of Hybrid Social-Ordering Systems, Tim Wu

Faculty Scholarship

Software has partially or fully displaced many former human activities, such as catching speeders or flying airplanes, and proven itself able to surpass humans in certain contests, like Chess and Jeopardy. What are the prospects for the displacement of human courts as the centerpiece of legal decision-making? Based on the case study of hate speech control on major tech platforms, particularly on Twitter and Facebook, this Essay suggests displacement of human courts remains a distant prospect, but suggests that hybrid machine – human systems are the predictable future of legal adjudication, and that there lies some hope in that combination, …

The Need For Strict Morality Clauses In Endorsement Contracts, Caysee Kamenetsky

Pace Intellectual Property, Sports & Entertainment Law Forum

The increasing significance of morality clauses seems to directly correlate with the increase of social media platforms and avenues to live-stream events, including but not limited to Facebook, Snapchat, Instagram, and Twitter. News of an athlete’s behavior can go viral in a matter of seconds. This leads company brands to seek broader terms in their morality clauses to allow them to disassociate themselves from the athlete. However, this is not always fair to the athlete, who might not have any idea that their personal-life choices could lead to the end of an endorsement contract.

From Old Spice To The Texas Law Hawk: How Inbound Marketing, Content Leadership And Social Media Can Level The Playing Field For Solo Practitioners, J. Mark Phillips, Kyle A. Huggins, Lora Mitchell Harding

The Journal of Business, Entrepreneurship & the Law

The advent of technological tools such as social media present the legal industry with the potential for both perilous liability and unparalleled rainmaking. However, the full potential of social media remains untapped in the legal field because the topic has yet to be fully integrated into a broader understanding of inbound marketing and content leadership. The current treatment of social media in the legal literature is uneven-it tends to disproportionately emphasize the potential liabilities over the benefits, and it fails to provide a thorough framework to guide its optimal use. This article aims to rectify this uneven treatment by situating …

Shared Branding: Associated Use Of Trademarks And Trade Dress Through Shared Retail Space, Lanning Bryer, Scott Lebson, Francesca Montalvo

The Journal of Business, Entrepreneurship & the Law

This Article explores the increasingly popular marketing strategy of two or more unrelated companies offering their separate and distinct mono-branded goods and services in a shared commercial space--herein referred to as “shared branding.”

Locally Grown Food: Examining The Ambiguity Of The Term 'Local' In Food Marketing, Brad Rose

Journal of Food Law & Policy

Locally grown food products are becoming increasingly popular among consumers. In response, many food retailers are devoting more space to locally grown products. The locally grown label is part of a marketing strategy designed to take advantage of consumer desires for fresh and safe products that support local farmers and help the environment. Many consumers believe that locally grown food is "fresher, has fewer chemicals, and comes from smaller, less corporate farms.' This increased demand from consumers has led to an "explosion of the use of the word 'local' in food marketing." However, there is no single definition of "local" …

The First Amendment, Gaming Advertisements, And Congressional Inconsistency: The Future Of The Commercial Speech Doctrine After Greater New Orleans Broadcasting Ass'n V. United States, Nicholas P. Consula

Pepperdine Law Review

No abstract provided.

Coolhunting The Law, Mark Fenster

UF Law Faculty Publications

In this essay, I want to use the image of the "coolhunter" to consider what Victor Fleischer has called the "branding moments" in a corporation's legal life -- specifically, those events, most notably in initial public offerings, in which a company, with the assistance of counsel, uses its legal infrastructure and corporate transactions to further its brand. This essay is a small effort to use Fleischer's work to think through these issues by focusing, in turn, on branding, on the various audiences for these branding moments, on the relationship between the brand and transparency norms, and, finally, on the role …

Metabranding And Intermediation: A Response To Professor Fleischer, Laura A. Heymann

Faculty Publications

No abstract provided.

Comparative Advertising In The United States And In France, Charlotte J. Romano

Northwestern Journal of International Law & Business

Comparative advertising has been widely used for over thirty years in the United States. By contrast, the use of this advertising format has traditionally been-and still is-very marginal in France. The term "comparative advertising" refers to any form of advertising in which a trademark owner draws a comparison between his product, service, or brand and that of a competitor. The central issue of this article is to determine why, despite identical guiding policies, comparative advertising remains unusual in France while it is commonplace in the United States. Attempting to answer that question unavoidably raises numerous related issues: can the two …

Pop Goes The Commercial: The Evolution Of The Relationship Between Popular Music And Television Commercials, Nora Miles

Vanderbilt Journal of Entertainment & Technology Law

Although the use of new pop songs in commercials is a recent development, the fact that music plays an important role in advertising is certainly not news. Music is and has always been an integral part in nearly all commercial advertising campaigns. Since the advent of radio and television the consumer public has been exposed to marketing through music. In order to understand the implications of the trends in music advertising, this note examines the more traditional schemes of music in advertising. To that end, there are several different routes an advertiser can choose when selecting music for a particular …

The Montana Reserved Water Rights Compact Commission, Marcia Beebe Rundle

Natural Resource Development in Indian Country (Summer Conference, June 8-10)

27 pages.

Contains references.

Products Liability--An Analysis Of Market Share Liability, David A. Fischer

Faculty Publications

In Sindell v. Abbott Laboratories the Supreme Court of California created the market share liability theory of recovery for products liability cases. The innovative Sindell theory, which applies to certain products liability cases in which causation is either questionable or difficult to prove, departed significantly from the traditional tort principles of causation and liability. The theory allows plaintiffs to recover damages for their injuries, but it discounts the defendant's liability by the probability that it did not cause the harm.

Billboard Regulations, And Aesthetics, Richard Sutton

Cleveland State Law Review

The regulation of outdoor advertising has prompted a surprisingly prodigious amount of controversy and litigation. It has been challenged as a denial of free speech, due process, and equal protection; it has been upheld on nuisance4 and real property grounds, and sustained on the basis of public health, safety, morality, comfort and convenience, aesthetics, and the right to be let alone."