FTC Assault on Lord & Taylor Follows Viral Product Bomb Campaign

Industry members were surprised to see swift enforcement of the FTC’s Native Advertising Enforcement Policy, disseminated in December 2015. On March 15, 2016, the FTC announced its first consent order under this policy. Retailer Lord & Taylor (L&T) had run a highly successful social media “product bomb” campaign in March 2015 to launch its apparel line Design Lab. The campaign focused on one paisley, asymmetrical dress. L&T contracted with Nylon, an online fashion magazine, to run an article about the collection and feature the paisley dress. L&T also required Nylon to post a photo of the dress on its Instagram page. L&T reviewed both the article and the Instagram post before publication but failed to require a disclosure that they were paid advertising. Instead, the FTC alleged that L&T falsely and deceptively presented Nylon’s content as independent opinion about the Design Lab line.

How To Keep Your Native Advertising Legal

The FTC’s recent guidance on native advertising reinforces that transparency and disclosures are important for avoiding consumer deception. Consumers may be confused by advertising that feels and looks like an editorial platform. They cannot always tell who is responsible for the message. The FTC wants to make sure that consumers know when they are looking at advertising so they can evaluate its credibility.

What Every Marketer Needs to Know about Trademarks

Every marketer needs to know some basic facts about trademarks to ensure the brand she is building has protection. Here is a short course in trademark law that will allow you to understand some basic concepts.

Fair Use is an Exception to Copyright Law

I am frequently asked by clients if they can make use of someone else’s intellectual property. The myths abound. Here are three: Just because it’s an educational use doesn’t mean it’s a fair use (although it helps). Just because something lives in the public eye doesn’t mean it’s not protected by copyright or other intellectual property laws. (Consider the Hollywood Sign which is protected by trademark law.) Just because you’ve taken less than 10% of a work doesn’t mean you aren’t infringing on the copyright for that work

Copyright owners also operate under misconceptions. The most common mistake is believing that when a third party cannot prove fair use, its use of a copyrighted work will be considered infringing.

Fast Talkers Not Needed: FCC Updates “Contest Rule”

Times have changed, and the FCC has noticed. For almost four decades since 1976, we have heard fast talking announcers on radio and television, rushing through legal disclaimers at the end of commercials for contests. The FCC’s “contest rule” had required full disclosure on air of material terms of a contest or sweepstakes. (See 47 C.F.R. Section 73.1216.) Recently, the FCC adopted revised rules that would allow broadcasters to refer consumers to an Internet website instead of reading contest rules on air.

How Your Sweepstakes Rules Can Protect You

Here’s a great court case that proves the power of having well-drafted rules for your contest or sweepstakes. Even better, the court case involves a plaintiff unsuccessfully suing the FTC.