This presentation, brought to you by Chicago's leading Entertainment Law firm, is geared for in-house counsel tasked with managing a broad range of IP, marketing, branding and promotions efforts.

1. Trends in Marketing & Branding
Leavens, Strand, Glover & Adler

2. OVERVIEW
Tech is transforming the way that people interact:
 How Companies Engage in Bus. Dev.
 How We Grow & Maintain Relationships
 Empowers Individual Consumers
 Consumers Impact Business Decisions
Leavens, Strand, Glover & Adler

3. KEY AREAS
Digital Marketing & Advertising Channels Present New
Challenges:
 Reputation Management
 Online Comparative Advertising
 Marketing Through Social Channels
 Use By Celebrities
 Endorsements
 Mobile Platforms
 Marketing to Children
Leavens, Strand, Glover & Adler

4. Reputation Management
Impersonation/Reputational Harm on the Internet
 Online imposters, defamers, and infringers, Reviews &
Recommendation Engines
 Yelp, Amazon
 Be familiar with features, practices, and policies of these
sites.
 Preserve objectionable content immediately (e.g.
screenshots)
 Delegate responsibility: do not want your CEO or trial lawyer
becoming a witness merely for the purpose of authenticating
Leavens, Strand, Glover & Adler

5. Reputation Management
 Social Media: The New Frontier
 Reputation can be ruined in minutes
 Anonymous/Defamatory/Incorrect/Incomplete
 Internal Controls
 Who is registering the account? (e.g. summer intern)
 Create an Ownership Agreement:
 Account log in
 Use company email
 Social Media policies
 Damages: Clay Corp. v. Colter (MA) $700,000
Leavens, Strand, Glover & Adler

6. Online Comparative Advertising
Use of Another’s Trademark in a Manner that is NOT
Infringement
 Ebates Performance Marketing, Inc. v. Integral
Technologies, Inc., No. 12-cv-06488-YGR, (N.Dist. CA)
Leavens, Strand, Glover & Adler

7. Online Comparative Advertising
 TRO
 Irreparable harm to reputation, customer trust & goodwill
 Though not discussed, use was “nominative”
 No suggestion of affiliation or misrepresentation
 Take Aways:
 Balance creativity of advertising with facts communicated
 Draw clear distinction between Products & Services offered
under your trademarks / your competitor’s trademarks.
 Qualitative or Quantitative claims? Must have data and tests
 Leading 7th circuit case: Mead Johnson & Co. v. Abbott
Labs., 209 F.3d 1032 (7th Cir., 2000)
Leavens, Strand, Glover & Adler

8. Marketing In Social Channels
Endorsements & Testimonials
 October 2009, Updated “FTC’s Guides Concerning the Use
of Endorsements and Testimonials in Advertising.”
 Endorsements increasingly used by consumers, experts,
organizations and celebrities in online marketing.
 Removed “results not typical” safe harbor
 underscored the longstanding principle of disclosing
“material connections”
Leavens, Strand, Glover & Adler

9. Marketing In Social Channels
 Seven Step Compliance Plan
1. Personal Opinion: No $ = No Disclosure
2. Sample/Gift: How item or service received
3. Promotional: 1) Existence, 2) Value, & 3) Impact
4. Employment: “material business relationship”
5. Affiliates: Links + Paid referrals
6. Healthcare: safety warnings, side effects, provide official
links
7. Financial Services: NASD, SEC, FINRA - Record Retention;
Suitability; Public Appearances; Third-Party Posts
Leavens, Strand, Glover & Adler

10. Marketing In Social Channels
 Celebrity Issues
 Right of Publicity
 Hart v. EA Sports
Leavens, Strand, Glover & Adler

11. Mobile Platforms
In the digital world, mobile is the new driver of commerce:
 Consumers and business are transacting business over mobile devices
 New legal issues around advertising, privacy & security
 FTC Enforcement:
 01/26/2012 - First Workshop on Mobile Payments and Their Impact on Consumers
 02/02/2012 - Marketers Warned That Mobile Apps May Violate FCRA
 02/16/2012 - First Report On Privacy Questions About Mobile Apps for Children
 09/05/2012 - Mobile App Developers Truth-in-Advertising & Privacy Guide
 10/10/2012 - Second Report On Privacy Concerns in Mobile Apps for Children
 02/01/2013 - Path Consumer Deception In Collecting Personal Information
 02/22/2013 - Settlement with HTC America (handsets) Privacy By Design
 03/07/2013 - Crack Down on Spam Text Messages
 03/08/2013 - Staff Report Examines Growing Use of Mobile Payments
 04/17/2013 - First Case Against Mobile Phone "Cramming"
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12. Marketing to Children
Protect Kids’ Privacy
 FTC: “If app is designed for children under 13 or you
know you collect personal information from kids, you
have additional compliance requirements under
COPPA
 Applies to Mobile Apps (not just web sites)
 Expanded Definition of Personal Information
 July 1, 2013
 Civil penalties of up to $16,000 per violation
Leavens, Strand, Glover & Adler

13. Conclusion
 Rapid Technological Change = Opportunities + Risks
 Confusing & changing set of challenges
 Complex & inconstant regulatory environment
 LSGA focused on the intersection of innovation &
creative content
 Successful Marketing & Advertising requires
specialized knowledge beyond basic IP
Leavens, Strand, Glover & Adler

14. Thank You!
Leavens, Strand, Glover & Adler