Topic: Advertising

Denial of CDA immunity defense not immediately appealable

By Andre Hanson (US) on December 7, 2016 Posted in Advertising

On November 1, 2016, the U.S. Court of Appeals for the Tenth Circuit ruled that the Communications Decency Act (CDA) provides immunity from liability, not from suit, precluding interlocutory appellate jurisdiction under the collateral order doctrine. General Steel Domestic Sales, L.L.C. v. Chumley, et al., Case No. 15-1293, __ F.3d __, 2016 WL 6441028. The … Continue reading

Package as “Advertising”

By Susan Ross (US) and Robert Rouder (US) on December 6, 2016 Posted in Advertising

On October 17, 2016, a US federal trial court in the District of Columbia ruled that a competitor may pursue a Lanham Act claim for false advertising due to a container of black pepper. Watkins Inc. v. McCormick & Co., Inc., Case No. 1:15-cv-2188 (ESH) (D.D.C. Oct. 17, 2016) (2016 WL 6078250). In ruling on … Continue reading

Better Business Bureau’s New “Native Advertising” Guidance

By Susan Ross (US) on November 3, 2016 Posted in Advertising

On October 25, 2016, the Better Business Bureau (BBB) announced its release of a new section to its Code of Advertising to address The term “native advertising” describes ads where the “design style and functionality of commercial messages mimic related content.” The New Guidance The fundamental point of the new section 39 is that advertisers … Continue reading

Second Circuit may address apparent Apotex/Church & Dwight split

By Andre Hanson (US), Robert Rouder (US) and Saul Perloff (US) on November 2, 2016 Posted in Advertising

In our September 28, 2016 blog post, and subsequent Law360 Article, we reported that an internal Second-Circuit split had arisen regarding the deference owed to allegedly false and misleading pharmaceutical/medical device advertising where the FDA had considered and approved similar claims for labeling. The earlier decision involved in the split, Apotex, Inc. v. Acorda Therapeutics, Inc. 823 F.3d 51 (2d … Continue reading

The duty to disclose under the Lanham Act and New York law

By Susan Ross (US) on October 24, 2016 Posted in Advertising

On September 2, 2016, the federal trial court in Manhattan issued its opinion in Casper Sleep, Inc. v. Mitcham, relating to a mattress review website and its disclosures. Slip Op., Casper Sleep, Inc. v. Mitcham et al, Case No. 1:2016–cv–03224 (Doc. 26, S.D.N.Y. 2016). The case involved mattressnerd.com, a website owned by Jack Mitcham, that … Continue reading

Intra-Circuit split should give advertisers pause

By Robert Rouder (US), Andre Hanson (US) and Saul Perloff (US) on September 28, 2016 Posted in Advertising

While advertising off-label claims for medical devices and pharmaceuticals may be like sailing into stormy waters, companies might assume that advertising their products based on FDA-vetted labeling is, if not a safe harbor, at least a reasonably sheltered cove. The recent Second Circuit decision in Church & Dwight Co. Inc., v. SPD Swiss Precision Diagnostics, … Continue reading

Don’t congratulate #TeamCanada at #Rio2016: Olympic social media rules in Canada

By Karen Sie (CA) and Brian Gray (CA) on August 9, 2016 Posted in Advertising, Trademark

With the Rio Olympics well underway, Canadian brands need to be aware of the “do’s and don’ts” of advertising and social media content involving the Olympics and Olympic athletes. The International Olympic Committee (IOC) and the Canadian Olympic Committee (COC) have long been aggressive in enforcing illicit use of the term “Olympics”, the five rings … Continue reading

Who goes to Rio: Sports sponsorship and ambush marketing in Australia

By Frances Drummond (AU) on August 5, 2016 Posted in Advertising, Copyright

The Australian Olympic Committee (AOC) is urging the public to support “true, valued Partners” after it lost its last minute bid to prevent ambush marketing ahead of the 2016 Summer Olympic Games. Australian Olympic Committee, Inc. v. Telstra Corporation Limited [2016] FCA 857 (29 July 2016). The decision by the Federal Court of Australia highlights the … Continue reading

In the UK, the first rule of the Olympics is: You don’t talk about the Olympics

By Farah Mukaddam (UK) on August 4, 2016 Posted in Advertising, Trademark

The Rio 2016 Olympics are upon us and will undoubtedly capture the attention, excitement and imagination of the public in the UK and globally. It is no surprise then that some businesses may seek to capitalise on the opportunity to promote their brands, products and services through advertising that references the Olympics, Team GB and … Continue reading

Social media risks during the Rio Games

By Saul Perloff (US) on August 1, 2016 Posted in Advertising, Trademark

In just four days, the world’s attention will turn to Rio de Janeiro and the Games of the XXXI Olympiad. At the same time, sports enthusiasts will turn to social media to express their support for the Games, for their countries’ teams and for their favorite athletes. Individuals, news outlets, and official Olympic sponsors are … Continue reading

Canadian government seeks external review of government advertisements

By Karen Sie (CA) on July 14, 2016 Posted in Advertising

Advertising Standards Canada (ASC), Canada’s independent advertising self-regulatory body, has been requested to provide advertising review services for all Government of Canada advertisements. The ASC administers the Canadian Code of Advertising Standards, which sets the criteria for acceptable advertising in Canada. The ASC typically provides advertising preclearance services, and adjudicates consumer complaints and advertising disputes. … Continue reading

“Sue me already” – Analyzing Kanye’s (In)Famous Video

By Saul Perloff (US) on July 5, 2016 Posted in Advertising, Trademark

On June 24, 2016, rap artist Kanye West premiered the music video for his single, “Famous,” at The Forum in Inglewood, California. The NSFW production – featuring a naked Kanye asleep in a King (Kong)-sized bed amidst depictions of a dozen other nude, sleeping celebrities – immediately drew strong reactions. Some praised the video. For … Continue reading

Recent changes to advertising on social media platforms?

By Karen Sie (CA) on July 1, 2016 Posted in Advertising

With millions of people walking around with their heads down on their phones, it’s no surprise that mobile advertising on social media platforms has experienced significant growth in the past 12 months. Social media platforms have been continuing to develop ad capabilities to maximize offerings for brands and growth in the social media marketing space … Continue reading

New country of origin food labeling system

By Alyson Poole (AU) and Frances Drummond (AU) on May 9, 2016 Posted in Advertising

The Times, They Are A Changin’: From 1 July 2016, new country of origin labeling requirements will become a reality in Australia, with a new food labeling system commencing under the Australian Consumer Law. Both consumers and businesses need to be aware of the new system, which is intended to ensure that labels are clear … Continue reading

Competition Bureau alleges Moose Knuckles’ “Made in Canada” claims are false and misleading

By Karen Sie (CA) on April 29, 2016 Posted in Advertising

On April 26, 2016, Canada’s Competition Bureau filed an application with the Competition Tribunal alleging that Moose International Inc., carrying on business as Moose Knuckles, engaged in deceptive marketing practices and that the “Made in Canada” claims associated with certain of its parkas and other apparel are false and misleading. Under the Competition Bureau’s Enforcement … Continue reading

Long legal battle ends with jury victory for Coca-Cola in pomegranate juice dispute

By Lauren Valkenaar (US) and Saul Perloff (US) on April 5, 2016 Posted in Advertising

A California jury recently ended an eight-year legal battle between POM Wonderful (“POM”) and The Coca-Cola Company (“Coca-Cola”) finding that Coca-Cola’s Pomegranate-Blueberry juice labeling did not mislead customers, even though the juice contained less than 1% Pomegranate and Blueberry juices combined. Procedural History We have been following the critical twists and turns of this litigation which began in 2008 … Continue reading

Amarin and FDA settle off-label suit

By Robert Rouder (US), Katharyn Grant (US) and Saul Perloff (US) on March 9, 2016 Posted in Advertising

As we reported last August, US District Judge Paul Engelmayer ruled that Amarin Pharma has a First Amendment right to truthfully promote its prescription drug Vascepa for off-label uses. August 10, 2015, article. Shortly afterward, Amarin and the government entered settlement talks. August 31, 2015 update. We are now able to report that on March 8, … Continue reading

All aboard? Possible changes to country of origin food labeling in Australia

By Alyson Poole (AU) on February 9, 2016 Posted in Advertising

The Department of Industry, Innovation and Science (DIIS) is currently calling for submissions from food industry stakeholders in response to a consultation paper which has the potential to change significantly the framework governing food labeling requirements in Australia. This update discusses possible changes to food regulation, including through the introduction of a requirement for labels … Continue reading

Social media campaigns and lobbying

By Susan Ross (US) on January 11, 2016 Posted in Advertising

GAO finds EPA violated law On December 14, 2015, the General Accounting Office found that a portion of the Environmental Protection Agency’s social media campaign violated federal laws relating to propaganda and anti-lobbying. Because the laws also affect government contractors, the GAO findings may be of interest, especially since they are similar to Federal Trade … Continue reading

Gobble Inc.’s (not so) “eco-friendly” claims discontinued

By Susan Ross (US) on December 7, 2015 Posted in Advertising

California-based meal delivery service Gobble Inc. made some changes to its advertising, just in time for Thanksgiving. On November 18, 2015, the National Advertising Division (NAD) of the Council of Better Business Bureau announced that Gobble agreed to discontinue certain “eco-friendly” claims made regarding its packaging materials and business. As part of the NAD’s ongoing … Continue reading

Kim Kardashian posts corrective ad on Instagram

By on September 3, 2015 Posted in Advertising

Kim Kardashian is promoting Diclegis® on social media once again. But this time, she is posting about the drug to correct her prior actions. On August 12, we discussed Kim Kardashian’s Instagram and Facebook post in which she discussed the drug Diclegis® and the positive effect that she claims it has had on her morning … Continue reading

Amarin, FDA talking settlement

By Saul Perloff (US) on August 31, 2015 Posted in Advertising

In a letter dated August 28, an attorney representing Amarin Pharma, Inc. advised the judge overseeing Amarin’s case against FDA, that “The parties have agreed to explore the possibility of settlement of this matter.” In our recent post, we analyzed U.S. District Judge Paul Engelmayer’s August 7th decision granting Amarin’s motion for preliminary injunction against the … Continue reading