Marketing Law Commons^™

Uncharted Waters? Legal Ethics And The Benefit Corporation, Joseph Pileri

St. Mary's Journal on Legal Malpractice & Ethics

Corporate law norms are reflected in lawyers’ ethical duties. The enactment of benefit corporation legislation across the country signals a legislative acknowledgment that corporate law can serve as a public, rather than a merely private, ordering mechanism. Benefit corporations expressly adopt a public benefit as a legal purpose of the enterprise. While many have written about this important development with respect to corporate fiduciary law, this essay is the first to explore the professional and ethical responsibility of lawyers representing benefit corporations. In the last century, as scholars and courts drove an understanding of corporate law that elevated the interests ...

Harmonizing The Tension Between The First Amendment And Publicity Rights And Finding The Right Balance: Discerning How Much Freedom Is Warranted And What Needs Protection, William Buchsbaum

The University of Cincinnati Intellectual Property and Computer Law Journal

This paper examines the tension between the First Amendment and Publicity Rights considering why and how friction is emerging, the legal underpinnings and theories behind the development of publicity rights and how to reconcile this with values raised in support of the First Amendment. This collision course of rights occurs where property interests have vested in human identity itself which brings us face to face with the outer limits of free speech and expression under the First Amendment and evens tests the notion of how we define speech. The paper takes a dive into some of the currently arising issues ...

The Potemkin Temptation Or, The Intoxicating Effect Of Rhetoric And Narrativity On American Craft Whiskey, Derek H. Kiernan-Johnson

Articles

No abstract provided.

Do We Need Help Using Yelp? Regulating Advertising On Mediated Reputation Systems, David Adam Friedman

University of Michigan Journal of Law Reform

Yelp, Angie’s List, Avvo, and similar entities enable consumers to access an incredibly useful trove of information about peer experiences with businesses and their goods and services. These “mediated reputation systems,” gatherers and disseminators of consumer peer opinions, are more trusted by consumers than traditional commercial channels. They are omnipresent, carried everywhere on mobile devices, and used by consumers ready to transact.

Though this information is valuable, a troubling conflict emerges in its presentation. Most of these reputation platforms rely heavily on advertising sales to support their business models. This reliance compels these entities to display persuasive advertising right ...

Yershov V. Gannett: Rethinking The Vppa In The 21st Century, Ariel A. Pardee

Maine Law Review

Almost anyone with a smartphone can recall a time when an online advertisement followed them from webpage to webpage, or mobile browser to mobile application, or even jumped from a mobile device to a desktop web browser. While some people see it as a harmless—or even helpful—quirk of the online world, others find it creepy and intrusive. In the absence of significant government regulation of online advertising practices, particularly aggrieved individuals have sought relief in the courts by alleging violations of ill-fitting statutes drafted decades ago. This note explores just such a case, Yershov v. Gannett, in which ...

A Compromise - Adding A Knowledge Requirement To Rule 13b2-2 Of The Securities Exchange Act Of 1934, Danielle K. Shaffer

Akron Law Review

The United States Securities and Exchange Commission (SEC) was established to protect investors and support fair and efficient financial markets. To combat bribery of foreign officials in the practice of business, the Foreign Corrupt Practices Act enacted Section 13(b) of the Securities Exchange Act of 1934. Generally, Section 13(b) establishes requirements for the financial records, internal controls, and accounting of public companies. Section 13(b) maintains stricter requirements for financial records for the public and SEC to easily detect illegal activity as well as to deter the companies from participating in these activities. Following the Sarbanes-Oxley Act of ...

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.

Restoring Rogers: Video Games, False Association Claims, And The “Explicitly Misleading” Use Of Trademarks, 16 J. Marshall Rev. Intell. Prop. L. 306 (2017), William K. Ford

William K. Ford

Courts have long struggled with how to balance false association claims brought under the Lanham Act with the protections for speech under the First Amendment. The leading approach is the Rogers test, but this test comes in multiple forms with varying degrees of protection for speech. A substantial portion of the litigation raising this issue now involves video games, a medium that more so than others, likely needs the benefit of a clear rule that protects speech. The original version of the test is the simplest and the one most protective of speech. In 2013, the Ninth Circuit endorsed the ...

Going … Going … Public? Taking A United States Professional Sports League Public, Ian A. Mclin

William & Mary Business Law Review

The four major American professional sports leagues—the MLB, NBA, NHL, and NFL—are wildly popular, but the leagues fail to capitalize fully on their success because they are organized in a largely inefficient manner. By organizing as unincorporated non-profits, leagues forgo their ability to raise capital via investors, forcing taxpayers to bear the burden of league investments such as new stadium construction. Further, the current organizational model creates a collective action problem, as self-interested team owners focus their support on actions that benefit their own franchise and leave ineffective commissioners in power.

A solution to these problems is for ...

Rethinking Children's Advertising Policies For The Digital Age, Angela J. Campbell

Georgetown Law Faculty Publications and Other Works

This article describes major changes in how video content and advertising is delivered to consumers. Digital technologies such as broadband allow consumers to stream or download programming. Smart phones and tablets allow consumers to view screen content virtually anywhere at any time. Advertising has become personalized and integrated with other content.

Despite these major changes in the media markets, the framework for regulating advertising to children has not changed very much since the 1990s. This article argues that the existing regulatory framework must be reinvented to protect children in the digital age. It uses Google’s recently introduced YouTube Kids ...

It’S My Mark, I Can Offend If I Want To! The Waning Of The Government’S Power To Protect Its Citizens From Widespread Discriminatory Marks, 16 J. Marshall Rev. Intell. Prop. L. 505 (2017), Paul Sanders

The John Marshall Review of Intellectual Property Law

There is an inherent tension between the First Amendment and trademark law. For over 100 years the United States Patent and Trademark Office has protected American citizens from Marks of ill repute. In the wake of the In re Tam decision, this may become more difficult if not impossible. This comment analyzes In re Tam, as well as explores the First Amendment guarantee of free speech and trademark law, and how each intersects with each other. Additionally, this comment proposes solutions that will allow the government to continue protecting its citizens from Marks that should have no place in commerce.

If It's In The Game: Is There Liability For User-Generated Characters' Likeness?, 16 J. Marshall Rev. Intell. Prop. L. 291 (2017), Jason Zenor

The John Marshall Review of Intellectual Property Law

In cases like Keller and No Doubt v. Activision, the federal courts held that the use of celebrity's likeness was a violation of the right of publicity. In response, EA Sports suspended production of college sports games. But most games still allow for gamers to create their own avatars. With game systems now being connected, gamers can download user-created content many of which will have the likeness of famous people, thus circumventing the holdings in Keller and No Doubt. Accordingly, this article examines how this type of user generated content fits within the law of appropriation. First, this article ...

Restoring Rogers: Video Games, False Association Claims, And The “Explicitly Misleading” Use Of Trademarks, 16 J. Marshall Rev. Intell. Prop. L. 306 (2017), William K. Ford

The John Marshall Review of Intellectual Property Law

Courts have long struggled with how to balance false association claims brought under the Lanham Act with the protections for speech under the First Amendment. The leading approach is the Rogers test, but this test comes in multiple forms with varying degrees of protection for speech. A substantial portion of the litigation raising this issue now involves video games, a medium that more so than others, likely needs the benefit of a clear rule that protects speech. The original version of the test is the simplest and the one most protective of speech. In 2013, the Ninth Circuit endorsed the ...

The Ambush At Rio, 16 J. Marshall Rev. Intell. Prop. L. 350 (2017), Adam Epstein

The John Marshall Review of Intellectual Property Law

The purpose of this article is to explore the role of the International Olympic Committee’s (IOC) codified marketing policy known as Rule 40 which emerged to prevent ambush marketing of its biennial events. Rule 40 has quickly evolved into a controversial rule for athletes, coaches and sponsors alike who are involved in the Olympic Movement. The IOC believes that social media is a ubiquitous threat to its intellectual property during the Olympic Games akin to traditional print and television ambush marketing campaigns. As a result, the 2016 Rio De Janeiro (Rio) Summer Olympic Games represented the most intense clash ...

Tweet Upon A Star: Organic Brand Engagement With Celebrities On Social Media Platforms, Kristin M. Adams

William & Mary Business Law Review

Social media is a rapidly evolving form of digital communication in the modern age. Brands continue to focus increasing resources on garnering consumer attention on social media platforms and are demanding measurable results from agencies or internal social media marketing teams. To both increase and demonstrate the value of a brand’s social media presence, many companies are engaging in behaviors that entail riskier legal strategies. Perhaps the most substantial legal land mine is “real-time content,” in which brands create and post content on vastly accelerated timelines with truncated legal approval processes in order to interact meaningfully with consumers. This ...

State Regulation Of Keyword Advertising: A Lesson From The Utah Legislature, Mary Candice Barrett

Journal of Intellectual Property Law

No abstract provided.

Contextual Healing: What To Do About Scandalous Trademarks And Lanham Act 2(A), Megan M. Carpenter

Law Faculty Scholarship

Offensive trademarks have come to the forefront of trademark policy and practice in recent years. While it was once true that more attention had been paid to Lanham Act section 2(a) in the pages of law reviews than in the courts, recent prominent cases have focused attention on the ban on registration of offensive marks and the widespread impact of this ban on trademark owners.

In this Article, I answer the fundamental question: Given the problems that my previous research has identified, what should be done about the 2(a) bar on registration of scandalous trademarks? This Article argues ...

Book Review: Foreign Commerce And The Antitrust Laws. By Wilbur L. Fugate. Boston: Little, Brown & Co., 2d Ed. 1973. Pp Xxv, 491. $35.00., Paul P. Harbrecht

Georgia Journal of International & Comparative Law

No abstract provided.

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 ...

Taking A Bite Out Of Michael Vick's Publicity Rights: An Analysis Of How Teh Right Of Publicity Should Be Treated After A Celebrity Is Convicted Of A Crime, Stephen Reginald Fowler

Journal of Intellectual Property Law

No abstract provided.