Marketing Law Commons^™

Towards Symmetry In The Law Of Branding, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Companies sometimes want to abandon an old identity and rebrand with a new one. Trademark law probably does not have much to say about rebranding in itself. But we should be careful about how we think about rebranding and other undisclosed source relationships because, if not handled properly, law’s recognition of such techniques could end up reinforcing trademark owners’ ability to deter competition and control free speech.

Provigil: A Commentary, Daniel A. Crane

Articles

Michael Carrier's case study on Provigil' offers new support for the view that Big Pharma is to blame for stymieing competition, retarding innovation, and inflating prices in the drug industry. Carrier argues that Cephalon was able to thwart generic entry by a combination of anticompetitive strategies. It entered into a reverse payment settlement agreement with generics seeking to enter the market. These settlements purported to allow generic entry before the expiration of the patent period, but, according to Carrier, the promise of early entry was negated by the second prong of Cephalon's anticompetitive strategy. During the time that it had …

Brand Or Anti-Brand?, Stacey Dogan

Shorter Faculty Works

How many law review articles begin with a scene from Wayne’s World? For Sonia Katyal, such an opening is par for the course. Since she entered the scene a decade ago, Katyal’s scholarship has celebrated irreverence, and examined the ways in which the law tolerates, enables, and often discourages commentary on dominant culture, icons, and in this case, brands. This essay – written for a symposium on advertising and the law at SUNY Buffalo Law School – continues the Katyal tradition.

A Bittersweet Deal For Consumers: The Unnatural Application Of Preemption To High Fructose Corn Syrup Labeling Claims, Josh Ashley

Journal of Food Law & Policy

The recent rise of consumer consciousness regarding the health qualities of foods and beverages has become something akin to common knowledge. Reflecting this rise, studies reveal that labels regarding the health qualities of a food are more likely to increase sales. And among the health labels consumers prefer, labels describing the product as natural top the list. One website reports that according to a recent study, 31.3-percent of respondents thought that "100% natural" was the best description to read on a label, compared with only 14.2-percent who thought that "100% organic" was the best description. "All natural ingredients" was the …

Advocacy In The Court Of Public Opinion, Installment Two: How Far Should Corporate Attorneys Go, Michele M. Destefano

Articles

Today, legal controversies are tried in the court of public opinion as much as in any court of law. Corporate lawyers' traditional tendency, however, has been to attempt to isolate legal activities from public relations activities. Accordingly, when providing legal advice, they have viewed media considerations as separate. Historically corporate counsels' typical media strategy often consisted of no more than, "no comment." Given today's saturated media culture, this is no longer a viable strategy. Indeed, it appears that some corporate lawyers are adapting to the new media environment and attempting to help their clients manage the public relations impact of …

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 …

The Multienforcer Approach To Securities Fraud Deterrence: A Critical Analysis, Amanda M. 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 …

Behavioral Advertisement Regulation: How The Negative Perception Of Deep Packet Inspection Technology May Be Limiting The Online Experience, Andrea N. Person

Federal Communications Law Journal

Privacy concerns associated with information available on the Internet has become a central focus for policymakers in Washington, D.C., and around the world. Specifically, the use of deep packet inspection (DPI) technology to offer behavioral advertising on the Internet has become the focus of policy discussions. While there are legitimate concerns related to improper use of this technology, the benefits of the proper use of DPI should not be overlooked. This Note asks how increasing regulatory barriers to limit online behavioral advertising could affect the consumer's experience online. To answer this question, this Note first looks at what DPI is, …

Antiques Roadshow: The Common Law And The Coming Age Of Groundwater Marketing, Dean Baxtresser

Michigan Law Review

Groundwater law in the United States is ill suited to deal with the issue of groundwater marketing. As freshwater shortages become more common with increasing population and a warming climate, scholars and business people are touting water markets as the solution to conservation and distribution, as well as a source of hefty profits. T Boone Pickens-the famous oil tycoon of Texas-has turned this concept into reality with his attempt to exploit the groundwater of the Ogallala Aquifer in the Texas Panhandle for thirsty Texas cities. Despite the looming water shortages, however, states have not adapted their laws to deal with …

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 …

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.

Google Adwords: Trademark Infringer Or Trade Liberalizer, Ashley Tan

Michigan Telecommunications & Technology Law Review

Google is the world's most preferred search engine, with an audience share of eighty percent of Internet users worldwide. With so many people browsing its search results, Google is a natural advertising vehicle, and it has exploited this quality to become one of the most profitable Internet companies in U.S. history. However, success has not come without controversy, and one of the most significant concerns Google AdWords, which displays keyword-triggered ads and sponsored links alongside non-sponsored search results. AdWords has come under attack in the United States and in the European Union ("EU") for its role in trademark infringement on …

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 …

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 …

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 …

A Hole In Need Of Mending: Copyright And The Individual Marking Of Advertisements Published In Collective Works, Randy D. Gordon

Faculty Scholarship

Over 20 years ago, the United States brought its copyright law into sync with international norms through the adoption of the Berne Convention. As a result, copyright notice is no longer a prerequisite to copyright protection. But because Congress implemented the Berne Convention through amendments to the (rather than adoption of a wholly new) Copyright Act, litigants have argued and at least some courts have held that certain works still must be noticed. This Article is concerned to rebut that contention.

New-School Trademark Dilution: Famous Among The Juvenile Consuming Public, Alexandra J. Roberts

Law Faculty Scholarship

The recently enacted Trademark Dilution Revision Act of 2006 recalibrated the degree of fame necessary to garner protection: the TDRA applies only to a mark "widely recognized by the general consuming public of the United States as a designation of source of the goods or services of the mark’s owner." By privileging those major players who succeed in turning their brands into household names, the TDRA strengthens incentives for mark-owners to ensure their logos and brand names are well-recognized not only among adult consumers, but also among children. This Article examines a set of marketing behaviors aimed at children that …

A Model To Explain Microfranchising In Bottom Of The Pyramid Markets, Robert J. Jensen, Chris Sutter

Brigham Young University International Law & Management Review

No abstract provided.

Social Networking As A Communications Weapon To Harm Victims: Facebook, Myspace, And Twitter Demonstrate A Need To Amend Section 230 Of The Communications Decency Act, 26 J. Marshall J. Computer & Info. L. 415 (2009), Joshua N. Azriel

UIC John Marshall Journal of Information Technology & Privacy Law

The article discusses how social networking sites can pose a danger to victims of online offensive content. Part II provides an overall analysis of the dangers the Internet, especially social networking, poses to victims. Part III reviews Section 230 of the CDA, including the “Good Samaritan” provisions for social networking websites such as Twitter and Facebook. Part IV analyzes three recent court cases that demonstrate how these social networking tools are used as weapons to harm victims. Part V concludes with a discussion of how the growing number of online incidents stem from social networking sites. It recommends that Congress …

Legislation For Effective Self-Regulation: A New Approach To Protecting Personal Privacy On The Internet, Richard M. Marsh Jr.

Michigan Telecommunications & Technology Law Review

How can we best reap the benefits of online profiling while avoiding the privacy pitfalls plaguing the e-commerce community? Experts advocate legislation, civil litigation, or self-regulation to provide the ideal solution. Analyzing these proposals reveals a conflict between two basic principles: the need to preserve personal privacy and the desire to foster a thriving Internet-based industry. This Note argues that each approach tends to favor one principle at the expense of the other. This Note also proposes a new solution which creates incentives for effective self-regulation backed with legal enforcement. This scheme strikes an appropriate balance between privacy and e-commerce …

Regulating Robocalls: Are Automated Calls The Sound Of, Or A Threat To, Democracy, Jason C. Miller

Michigan Telecommunications & Technology Law Review

African-American voters receive a phone message implying that they are not registered to vote. Others hear "an almost threatening male voice," a "fake New York accent," factual distortions about legislation, false endorsements from controversial groups, calls promoting one candidate claiming to be from his opponent, and a constant barrage of annoying phone calls designed to make voters think a different candidate was sponsoring them. These messages were delivered through automated political telephone calls, also known as robocalls. Robocalls are cheap and efficient--one can deliver a pre-recorded message through 100,000 automated phone calls in one hour for only $2000. Consequently, robocalls …

Embedded Advertising: Your Rights In The Tivo Era, 9 J. Marshall Rev. Intell. Prop. L. 146 (2009), Ann K. Hagerty

UIC Review of Intellectual Property Law

As DVR usage rapidly increases, embedded advertising is evolving and blurring the line for the viewing public between advertising and content. The FCC responded by seeking public commentary and guidance on the regulations governing embedded advertising. The comments the FCC received revealed a heated debate between media industry advocates and those who seek to protect consumer interests. The recent increase in the practice of embedded advertising has only intensified this debate. A balance must be struck between the interests of the media industry and the viewing public. To do so, the FCC must adopt a regulatory scheme that commands viewers’ …

Social Networking And Blogging: The New Legal Frontier, 9 J. Marshall Rev. Intell. Prop. L. 500 (2009), Robert Newman, Liisa Thomas

UIC Review of Intellectual Property Law

Improvements in communication technology have effectively made the world a smaller place. As businesses attempt to exploit these new technological improvements to better communicate their messages to their clients, these same improvements continue to raise new and difficult legal issues related to fair trade practices, privacy, and freedom of speech. This article identifies current legal developments related to advertising in the online world and analyzes the actions taken to resolve these new and difficult legal issues within the framework of United States federal and state law and private industry-specific self-governance.

Advertising Obesity: Can The U.S. Follow The Lead Of The Uk In Limiting Television Marketing Of Unhealthy Foods To Children?, David Darwin

Vanderbilt Journal of Transnational Law

Childhood obesity has tripled in the U.S. since the 1970s, and television advertisement of unhealthy foods has been linked to the unhealthy eating habits of children. The United Kingdom, facing a similar problem, promulgated regulations in 2007 banning the advertisement of foods high in fat, sodium, and sugar during programming directed at children below age 16.

In the U.S., industry representatives, public policy advocates, and government officials are debating whether to rely on self-regulation efforts or to implement government-established guidelines. Industry representatives argue that government guidelines would do little to solve the childhood obesity problem and that the UK regulations …

Prediction Markets And Law: A Skeptical Account, Rebecca Haw Allensworth

Vanderbilt Law School Faculty Publications

Enthusiasm for "many minds" arguments has infected legal academia. Scholars now champion the virtues of groupthink, something once thought to have only vices. It turns out that groups often outperform individuals in aggregating information, weighing alternatives, and making decisions. And although some of our legal institutions, such as Congress and juries, already harness the power of the crowd, others could be improved by multiplying the number of minds at work. "Multiplying" implies a simple mathematical formula for improving decisionmaking; modern many minds arguments are more sophisticated than that. They use incentive analyses, game theory, and statistics to study how and …

Does Private Equity Create Wealth? The Effects Of Private Equity And Derivatives On Corporate Governance, Randall Thomas, Ronald W. Masulis

Vanderbilt Law School Faculty Publications

Private equity has reaped large rewards in recent years. We claim that one major reason for this success is due to the corporate governance advantages of private equity over the public corporation. We argue that the development of substantial derivative contracts and trading has significantly weakened the governance of public corporations and has created a need for financially sophisticated directors and much closer supervision of management. The private equity model delivers these benefits and allows corporations to be better governed, creating wealth gains for investors.