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Trademarks, Incorporation, FTC Regs and More
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Excerpts from "Trademarks, Incorporation, FTC Regulations and More" presented December 8, 2010 at AffCon-Miami

Excerpts from "Trademarks, Incorporation, FTC Regulations and More" presented December 8, 2010 at AffCon-Miami

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  • 1. INTERACTIVE LEGAL CLINIC
    Trademarks, Incorporation, FTC Regulations and More
    December 8, 2010
    AffCon – 2010 Miami
    Presented by the Internet Law Center and Venable
  • 2. 15 Things Every Affiliate Should Know to Avoid Legal Liability
  • 3. PRESENTED BY
    TEXT
    Brian Benenhaley
    Columbia, SC
    Thomas A. Cohn
    New York, NY
    TEXT
    Bennet Kelley
    Santa Monica, CA
    Ari N. Rothman Washington, D.C.
  • 4. CORPORATE FORM LIABILITY
    2.    AFFILIATE LIABILITY 
    3.    TRADEMARK RIGHTS
    4.    COPYRIGHTS RIGHTHAVEN
    5.    CAN-SPAM 
    6.    DOT COM DISCLOSURES
    7.    DECEPTIVE FORMAT
    8.    BLOGGER RULE
    9.    ENDORSEMENTS
    10.   PRODUCT CLAIMS
    11.    PROMOTIONS
    12.    NEGATIVE OPTIONS
    13.    PRIVACY
    14.    USE OF WORD FREE
    15.    GOLDEN RULE THE ENDTHANK YOU FOR COMING
    THE BIG 15
  • 5. #1 CORPORATE FORM LIABILITY
    A
    B
  • 6.
  • 7. THE BASICS
  • 8. TM ISSUES IN AFFILIATE CAMPAIGNS
    likely to cause confusion, or to cause mistake, or to deceive as to
    the affiliation, connection, or association of such person with another person,
    or as to the origin, sponsorship, or approval of his or her goods, services,
  • 9. Trademarks and domain names
    Cybersquatting
    Legitimate Use
    Fans and Enemies
  • 10. Key word search and trademarks
    Initial Interest Confusion
    Use of another trademark “in a manner calculated to capture initial consumer attention, even though no actual sale is finally completed as a result of the confusion.”
    Brookfield Communications Inc. v. West Coast Entertainment Corp., 174 F.3d 1036 (9th Cir. 1999).
    B Tal
    10
  • 11. TM Use Limited to Search Term
    11
  • 12. “[A]s a matter of law[bidding on TM without use in ad does] not result in any actionable likelihood of confusion under the Lanham Act.”
    TM Use Limited to Search Term
    12
    J.G. Wentworth SSC Ltd v. Settlement Funding LLC, 2007 WL 30115 (E.D. Pa. Jan. 4, 2007) (granting motion to dismiss).
  • 13. Display of competing search ad which does not mention defendant’s name, “could mislead [a] consumer to believe the link is associated with” Plaintiff.
    TM Use Limited to Search Term
    13
    Morningware, Inc. v. Hearthware Home Products, Inc., 2009 WL 3878251 (N.D. Ill. Nov. 16, 2009)
  • 14. © - Copyright
    Righthaven
    DMCA
  • 15. #5 – CAN-SPAM ACT
  • 16.
  • 17. Principal Requirements
  • 18. FCC CAN-SPAM RULES
    Express Prior Authorization
  • KEY DECISIONS
    State Law Preemption
    Advertiser Liability for Affiliates
    Courts Reject Faux IASPs
  • 27.
  • 28. THE L WORD: LOTTERY
    • A lottery is any scheme for the disposal or distribution of property by chance, among persons who have paid or promised to pay any valuable consideration for the chance of obtaining such property or a portion of it, or for any share or any interest in such property, upon any agreement, understanding, or expectation that it is to be distributed or disposed of by lot or chance, whether called a lottery, raffle, or gift enterprise, or by whatever name the same may be known.
    • 29. CA Penal Code Sec. 319.
  • What is Not a Lottery?
  • 30. STATE REQUIREMENTS
    • Bonding
    • 31. Florida and New York for games of chance with prizes exceeding $5,000
    • 32. Bilingual
    • 33. Puerto Rico
    Registration
    Florida and New York if prizes exceeds $5,000
    Rhode Island if retail establishment offers a prize in a game of chance valued at more than $500
    Arizona if intellectual skill contest requiring purchase to enter
  • 34. New California Law on AMOESB 1400 (effective 1/1/09)
    Must include AMOE disclosure in solicitation material
    Official Rules
    Elsewhere if no rules
    Must be clear and conspicuous statement of the no-purchase-or-payment-necessary
    In understandable terms
    The no-purchase-or-payment-necessary message included in the official rules shall be set out in a separate paragraph in the official rules and be printed in capital letters in contrasting typeface not smaller than the largest typeface used in the text of the official rules.
  • 35.
  • 36. #13 ONLINE PRIVACY
  • 37. It’s Really Simple (not)
  • 38. 3 TAKEAWAYS
    PRIVACY POLICIES
    DATA SECURITY
    WHERE ARE WE GOING
  • 39. CONSUMERS DON’T READ ONLINE POLICIES
    By placing an order via this Web site on the first day of the fourth month of the year 2010 Anno Domini, you agree to grant us a non transferable option to claim, for now and for ever more, your immortal soul. Should We wish to exercise this option, you agree to surrender your immortal soul, and any claim you may have on it, within 5 (five) working days of receiving written notification from gamesation.co.uk or one of its duly authorisedminions.
  • 40. 2 BIGGEST PRIVACY POLICY MISTAKES
    (1) DON’T USE A PRIVACY POLICY HAND-ME-Down –ONE SIZE DOES NOT FIT ALL(2) SAY WHAT YOU DO AND DO WHAT YOU SAY
  • 41. DATA SECURITY IS SERIOUS BUSINESS
    FTC:
    THE EXISTENCE OF A SECURITY BREACH DOES NOT NECESSARILY MEAN NO ENFORCEMENT ACTION; BUT
    THE ABSENCE OF A BREACH DOES NOT MEAN NO ENFORCEMENT ACTION IF SECURITY IS STILL INADEQUATE
  • 42. THE FUTURE
    2011 – PRIVACY A PRIORITY IN CONGRESS
    2011 – EU REWRITES PRIVACY LAWS
    INCREASED STATE REGULATION
  • 43. #15 – THE GOLDEN RULE
  • 44. OR DON’T DO ANYTHING THAT WOULD TICK OFF GRANNY
  • 45. THANK YOU