Get real answers as to why your MAP policy is failing and how it can be fixed. Learn how to enforce against both authorized and stubborn grey market sellers.
Minimum Advertised Price policies are effective for keeping authorized distributors from advertising unauthorized discounts. However, as e-commerce continues to grow, unauthorized sellers are going to be an increasingly important challenge for brands to address. These unauthorized online retailers are far less likely to follow a manufacturer’s price policy. A recent study published by the Kellogg School of Management found 53 percent of grey market sellers do not comply with MAP policies. Unless a brand owner has taken the proper preemptive legal steps, unauthorized sellers can be difficult to enforce against.
Whitney Gibson, partner at Vorys and leader of the firm’s group focused on internet and brand reputation issues and Laura Erdman, an associate at Vorys, share strategies for creating an effective MAP policy that encourages authorized sellers to comply and gives brands legal claims to enforce against unauthorized sellers. As one of the leading law firms in the country on matters related to ecommerce brand and channel enforcement matters, Whitney and Laura are able to provide straight answers as why most MAP policy are failing today. Not only will that explain how to resolve common mistakes made by most brands, they will address how to identify and create legal claims against unauthorized sellers and how to navigate concerned distributors who may be upset with authorized reseller policies.
FTC Blogging Basics with 3 Green Angels. Jennifer Taggart of The Smart Mama, Alicia Voorhies of The Soft Landing and Sommer Poquette of Green and Clean Mom - 3 Green Angels Founders.
Comply With This: A Beginners Guide to Marketing ComplianceMichael Cunningham
Comply With This: A Beginner's Guide to Marketing Compliance will provide every member of your marketing team a general understanding of compliance standards. Meeting these standards will not only protect your company’s reputation and integrity, but it can also save you from making some very expensive marketing mistakes.
This document discusses various types of merchandise that retailers can buy, including national brands designed by manufacturers and private label brands developed by retailers exclusively for their stores. It describes different categories of private label brands from premium to generic. The advantages and disadvantages of national brands versus private labels are outlined. The document also covers the processes of developing private label merchandise, sourcing from global manufacturers, and support services available to buyers.
Contents include:
- When making an advertisement, what is okay?
- Elements of False Advertising - 43(a) of the Lanham Act
- Two ways to prove a statement is FALSE
- How can someone attack my testing?
- If I comply with the FDCA (Food, Drug and Cosmetic Act), will I avoid a False Labeling Claim?
- Venues
- How can my advertisement tend to mislead, confuse or deceive the consuming public?
Chap015 product liability and consumer protectionneogenesis6
This document discusses various laws and regulations pertaining to product liability, consumer protection, and consumer credit. It defines key concepts like negligence, strict liability, unfair/deceptive practices. It describes agencies like the FTC and laws they enforce including the Consumer Product Safety Act, Truth in Lending Act, and rules around issues like used cars, telemarketing, identity theft. The document also addresses consumer credit laws regarding billing, reporting, and debt collection.
GDPR vs Blockchain – A Paradox, Challenge and an OpportunityAffiliate Summit
This presentation is from Affiliate Summit East 2018 (July 29 - July 31, 2018 in New York).
Session description: In this session we shall discuss GDPR and its applicabilty to digital (European and non-European) marketers – what are the best ways to get prepared – and why Blockchain is a threat to GDPR.
This document provides a review for an exam on microeconomics. It covers key concepts like controlling monopolies through regulation, externalities, perfect competition, marginal cost, average cost, total cost, profit, demand, revenue, and consumer surplus. It also discusses asymmetric information between buyers and sellers, moral hazard, adverse selection, and how regulation can separate production from delivery to reduce these issues.
Litigation Planning for Licensing Attorneys CLE Presentationmikeatkins
This document discusses the legal concept of "naked licensing" of trademarks and the requirement for trademark owners to maintain control over the quality of goods and services provided under a licensed mark. It provides examples from case law where licensing agreements were found to constitute naked licensing due to insufficient quality control provisions. The document also discusses factors courts consider in determining whether trademark owners have exercised sufficient quality control to avoid abandoning their rights through naked licensing.
FTC Blogging Basics with 3 Green Angels. Jennifer Taggart of The Smart Mama, Alicia Voorhies of The Soft Landing and Sommer Poquette of Green and Clean Mom - 3 Green Angels Founders.
Comply With This: A Beginners Guide to Marketing ComplianceMichael Cunningham
Comply With This: A Beginner's Guide to Marketing Compliance will provide every member of your marketing team a general understanding of compliance standards. Meeting these standards will not only protect your company’s reputation and integrity, but it can also save you from making some very expensive marketing mistakes.
This document discusses various types of merchandise that retailers can buy, including national brands designed by manufacturers and private label brands developed by retailers exclusively for their stores. It describes different categories of private label brands from premium to generic. The advantages and disadvantages of national brands versus private labels are outlined. The document also covers the processes of developing private label merchandise, sourcing from global manufacturers, and support services available to buyers.
Contents include:
- When making an advertisement, what is okay?
- Elements of False Advertising - 43(a) of the Lanham Act
- Two ways to prove a statement is FALSE
- How can someone attack my testing?
- If I comply with the FDCA (Food, Drug and Cosmetic Act), will I avoid a False Labeling Claim?
- Venues
- How can my advertisement tend to mislead, confuse or deceive the consuming public?
Chap015 product liability and consumer protectionneogenesis6
This document discusses various laws and regulations pertaining to product liability, consumer protection, and consumer credit. It defines key concepts like negligence, strict liability, unfair/deceptive practices. It describes agencies like the FTC and laws they enforce including the Consumer Product Safety Act, Truth in Lending Act, and rules around issues like used cars, telemarketing, identity theft. The document also addresses consumer credit laws regarding billing, reporting, and debt collection.
GDPR vs Blockchain – A Paradox, Challenge and an OpportunityAffiliate Summit
This presentation is from Affiliate Summit East 2018 (July 29 - July 31, 2018 in New York).
Session description: In this session we shall discuss GDPR and its applicabilty to digital (European and non-European) marketers – what are the best ways to get prepared – and why Blockchain is a threat to GDPR.
This document provides a review for an exam on microeconomics. It covers key concepts like controlling monopolies through regulation, externalities, perfect competition, marginal cost, average cost, total cost, profit, demand, revenue, and consumer surplus. It also discusses asymmetric information between buyers and sellers, moral hazard, adverse selection, and how regulation can separate production from delivery to reduce these issues.
Litigation Planning for Licensing Attorneys CLE Presentationmikeatkins
This document discusses the legal concept of "naked licensing" of trademarks and the requirement for trademark owners to maintain control over the quality of goods and services provided under a licensed mark. It provides examples from case law where licensing agreements were found to constitute naked licensing due to insufficient quality control provisions. The document also discusses factors courts consider in determining whether trademark owners have exercised sufficient quality control to avoid abandoning their rights through naked licensing.
This document discusses brands, trademarks, and advertising. It begins by defining what a brand is, noting that a brand comprises a product or service, packaging, name/logo, promotion, and appeals to customers physically, aesthetically, rationally, and emotionally. It then defines what a trademark is, explaining that it distinguishes one company's goods/services from another's. The document recommends conducting trademark searches to identify potential issues and minimize risks. It also explains why trademarks should be registered, providing exclusive rights and prima facie evidence of ownership. The document concludes by discussing proper trademark use and marking.
This document summarizes legal issues related to unauthorized online sales of genuine branded goods. It discusses how unauthorized dealers can exploit loopholes like the first sale doctrine while undercutting authorized dealers. However, trademark owners can still pursue infringement claims if goods are materially different or fail to meet quality control standards. The document also outlines other potential legal approaches like copyright claims, false advertising, and secondary liability theories against platforms enabling unauthorized sales.
Unfair and Deceptive Acts and Practices Enforcement: Is your Facility at Risk?Jim Radogna
In this informative webinar, KPA F&I experts Jim Radogna and Ryan Lane will address these potential and legal pitfalls and suggest best practices for avoiding being caught up a “UDAP Trap.”
Avoiding and Resolving Disputes over Unsatisfactory ComponentsKristal Snider
The document discusses best practices for managing suppliers and avoiding disputes, including establishing trusted vendor programs, conducting due diligence on vendors, implementing quality control measures, using clear terms and conditions in contracts, addressing counterfeit issues, and resolving disputes through mediation rather than litigation. It emphasizes the importance of open communication, data sharing, and industry involvement to strengthen the global supply chain.
What A Babies R Us Class Action Lawsuit Can Teach Us About Successful Distrib...Heather Cooper
The Babies "R" Us class action lawsuit demonstrates that vertical price restraint claims can still proceed under federal antitrust law despite recent Supreme Court precedents. The lawsuit alleges that Babies "R" Us coerced baby product manufacturers into preventing online retailers from discounting in order to maintain higher prices. While the Supreme Court made vertical price restraint cases more difficult to bring, this lawsuit survived motions to dismiss, showing that room remains for such claims. The lawsuit also provides lessons for manufacturers and retailers regarding distribution strategies, such as avoiding pressure from dominant retailers and considering unilateral resale price maintenance policies.
Tips From an FTC Pro: How to Avoid Becoming an FTC TargetAffiliate Summit
This presentation is from Affiliate Summit East 2018 (July 29 - July 31, 2018 in New York).
Session description: The Trump FTC has been cracking down on Internet marketers and tightening the noose around affiliates and others in their ecosystem. Learn from an FTC expert how to stay compliant and avoid “FTC Jail”.
10 07-14 hosting con europe 2014 presentation unannotatedwdsnead
The document discusses creating effective global contracts for internet businesses. It provides tips for drafting clear and compliant contract language while protecting the business. Key points include conducting a thorough review of contracts, ensuring data protection and security compliance as a competitive advantage, starting from the customer's perspective, and addressing issues like indemnification, warranties and service level agreements in plain language terms. The presenters provide expertise in international legal advice and European data protection law.
Unfair and Deceptive Acts & Practices Seminar - Chicago Automobile Trade Asso...Jim Radogna
Dealers have plenty to worry about when it comes to rules and regulations governing the industry, but perhaps the most harrowing are known as “UDAPs”.
Unfair and Deceptive Acts and Practices (UDAP) statutes are consumer protection laws that address what lawmakers consider to be “unethical” or otherwise “bad” business practices. The FTC Act and the Illinois Consumer Fraud and Deceptive Business Practices Act both prohibit unfair or deceptive acts or practices. These statutes have far-reaching implications for auto dealers because they provide for enforcement by the government to stop the practices, individual actions for damages brought by consumers who are hurt by the practices, and even criminal liability.
Dealers need to be aware that these statues are extremely broad and not only prohibit acts and practices that fall directly under the purview of specific laws, but also any other practice that is determined to be unfair or deceptive to the consumer. A behavior can be found to be unfair and deceptive and thus actionable even though it does not constitute fraud, breach of contract, or negligence under more traditional law. As a result, UDAP claims are a favorite among consumer attorneys – especially those seeking class action lawsuits.
There are a wide variety of dealer sales, F&I, and advertising practices that may be considered to be unfair or deceptive by regulators or courts. Some of these are commonly-known, while others may surprise you.
In this informative seminar we’ll address these potential legal pitfalls and suggest best practices for avoiding being caught up in a “UDAP Trap”.
This seminar is highly recommended for dealership upper management as well as sales managers, F&I personnel, sales consultants, and others – anyone who interacts with, or markets to, consumers.
Trademark Law - Brand protection in the digital ageJudy Yen
Brand protection is important to protect goodwill and prevent consumer confusion. A brand is a source identifier that distinguishes goods and services. Trademarks associate an idea with an object or service. While patents protect novel inventions and copyrights protect original works, trademarks protect brands and prevent passing off. Trademark enforcement involves notifying infringers and potentially filing litigation. New challenges include cybersquatting, securing social media handles, and preventing app infringement. Vigilance is key to protecting brands in the digital age.
On May 1st Digital BrandWorks, an INC 500 digital consultancy, and Greenberg Traurig, an international law firm, pulled together some of the best thought leaders in ecommerce strategy, policy and execution to hold a panel discussion on the state of ecommerce today.
This event was the first in a series that will focus on how manufacturers and retailers can increase sales, protect margin, develop legal and comprehensive pricing policies to generally protect their brands online.
Joe Scartz, the CMO of Digital BrandWorks, spoke about the trends in ecommerce that impact every business. Specifically he covered:
How shopping has changed as ecommerce has continued to grow. Ecommerce is now 6% of total retail sales
The pain that bricks and mortars stores have experienced during this transition
The rise of Amazon as a preeminent retail player
Top Ecommerce categories
Brands selling direct
Mobile shopping growth
Showrooming and its impact on business
The growing trend of reverse showrooming
Omni-channel marketing and retailing and the future of retail
Tony Chvala, VP of Marketplace at Sears, spoke about tax issues facing etailers and tax nexus issues.
Irv Scher, Partner at Greenberg Traurig spoke about MAP policies and related ecommerce pricing issues. Specifically he covered:
Selecting customers and limitations placed on those customers
Resale price maintenance
Areas suppliers should stay away from when having pricing discussions
Promotional pricing
Minimum Advertised Price Policies
Pricing Incentive
Steve Wadyka, Partner at Greenberg Traurig spoke about Brand Enforcement Online. Specifically he covered:
Challenges facing brand owners in internet enforcement
Search engine and keyword advertising
Domain name registrars
Counterfeiting and fraud as related to auction sites, online marketplaces, web hosting providers, payment processors and social media
Rogue websites
Joe Scartz spoke about increasing online sales and protecting margin. Specifically he covered
Minding your brand
Knowing how to monitor your brand online
Review of a SKU Score which diagnoses problems related to product listing, pricing, sellers, product score, distribution on ecommerce retail sites
Selling direct as a manufacturer
Marketing and merchandising in the online channel
Managing online retailers to increase velocity
We’d like to thank everyone who attended the event and everyone that organized the event for making this an insightful and valuable gathering.
This document discusses legal and ethical issues in retailing. It covers two main categories of issues - ethical issues and legal issues. Ethical issues relate to explicit and implicit codes of conduct, while legal issues involve laws that make certain activities punishable. Specific topics covered include misuse of company assets, employee theft, consumer fraud, ethics policies, relationships with customers, site location considerations regarding environmental and zoning laws, equal employment opportunities, compensation, employee safety and privacy laws, and unethical advertising practices. Unethical purchasing practices for merchandise such as terms and conditions, commercial bribery, and chargebacks are also examined.
This document discusses brand licensing and celebrity endorsements. It defines brand licensing as leasing a brand name to another company, provides examples, and outlines the licensing process and benefits to licensors and licensees. Celebrity endorsements are defined as using a famous person to promote a product or service. The purpose is generally to increase sales and attract customer attention. Celebrities are commonly used to endorse high-priced, popular products that need to coordinate diverse customer groups.
Connecticut Automotive Retailers Association 2016 Dealer SymposiumJim Radogna
This document discusses unfair and deceptive acts and practices (UDAP) statutes and how they apply to automobile dealers. It notes that UDAP statutes cover virtually all aspects of a dealership's operations and interactions with customers. Violations can result in enforcement actions and lawsuits brought by government agencies and private attorneys. Key points are that even inadvertent violations are actionable, oral representations may create liability, and misleading omissions or ambiguous statements can violate UDAP statutes. The document provides examples of recent UDAP cases and penalties against dealerships and advises best practices for legal compliance.
This document provides an overview of key legal issues related to running a digital news business. It covers topics such as trademarks and domain names, privacy, terms of use, contracts, user generated content, and native advertising. For trademarks, it discusses when to register, the registration process, and infringement. For privacy, it outlines personally identifiable information versus non-PII, building a basic privacy program, and questions around mobile, international, and big data. For terms of use and contracts, it provides advice on click-through agreements, indemnification, and advertising sales terms. It also covers rules for native advertising and sponsored content.
Managing Risk: Legal Issues for Affiliate Marketers & Affiliate Marketing Man...Adler Law Group
Affiliate marketing is one of the most cost-effective techniques for monetizing web site traffic and driving sales. Unfortunately, it has a reputation for high risk. While the industry is unlikely to ever be risk-free, it is possible to manage risk by: (1) understanding how techniques like behavioral and contextual targeting affect consumers, affiliates and merchants, (2) understanding the legal and regulatory environment, (3) understating risks involved with prospective marketing partners, (4) using and maintaining proper contracts that allocate risk and provide appropriate indemnifications, and (5) keeping informed about the changes in technology, marketing practices and the regulatory environment. Attendees will learn how to identify these issues and develop policies and procedures to keep informed about the current technology, marketing strategies and regulatory compliance.
Topics covered include:
Behavioral/Contextual Advertising
Regulatory/Industry Compliance : FTC Guides & Enforcement Actions
CAN-SPAM compliance
IP Law: Rules governing use of others™ Trademarks/Keywords, Right of Publicity/Endorsement Issues.
Identifying, protecting against, and disputing accusations of Click-Fraud
This presentation by Rachel Brass, Partner, Gibson Dunn, was made during the discussion “Hub-and-spoke arrangements” held at the 132nd meeting of the OECD Competition Committee on 4 December 2019. More papers and presentations on the topic can be found at oe.cd/hsa.
Misleading Advertisement And Their Impact On Consumers Trust.pptxMohammadRasel46
This document summarizes a presentation about misleading advertisements and their impact on consumer trust. It discusses how advertisements sometimes provide inaccurate or misleading information about products. It provides examples of types of misleading claims, such as incorrect ingredients or exaggerated product sizes. The presentation also examines how manufacturers mislead consumers through unfair contract terms, improper use of customer data, and misleading digital ads. Several brands are called out for claims about their products that have been found misleading. The presentation recommends that consumers be cautious of advertising claims and report misleading ads to authorities to protect trust in the marketplace.
The wrong way and right way of retaining a testing laboratoryKristal Snider
The document discusses the issue of counterfeit parts in the supply chain. It notes that there is a lack of accountability and communication between organizations regarding counterfeit testing. Proper testing protocols, quality control, and traceability practices need to be established. The document recommends that distributors and customers work together to select testing facilities and ensure testing is sufficient. It provides tips for how to properly select testing facilities and what to include in procurement contracts to help prevent counterfeit parts.
AutoCon2012 Workshop - Dealer Compliance in a Digital Age - with Jim RadognaJim Radogna
This document discusses best practices for car dealers to avoid legal issues related to their digital advertising and presence. It outlines six key areas that regulators are focusing on: online advertising, online reviews, social media, contests and sweepstakes, text message marketing, and online privacy. The document provides examples of car dealers receiving fines for misleading advertising online and warns that regulators are actively monitoring dealers' digital activities. It provides guidance on ensuring advertising and online reviews comply with regulations to avoid fines or lawsuits.
Lifting the Corporate Veil. Power Point Presentationseri bangash
"Lifting the Corporate Veil" is a legal concept that refers to the judicial act of disregarding the separate legal personality of a corporation or limited liability company (LLC). Normally, a corporation is considered a legal entity separate from its shareholders or members, meaning that the personal assets of shareholders or members are protected from the liabilities of the corporation. However, there are certain situations where courts may decide to "pierce" or "lift" the corporate veil, holding shareholders or members personally liable for the debts or actions of the corporation.
Here are some common scenarios in which courts might lift the corporate veil:
Fraud or Illegality: If shareholders or members use the corporate structure to perpetrate fraud, evade legal obligations, or engage in illegal activities, courts may disregard the corporate entity and hold those individuals personally liable.
Undercapitalization: If a corporation is formed with insufficient capital to conduct its intended business and meet its foreseeable liabilities, and this lack of capitalization results in harm to creditors or other parties, courts may lift the corporate veil to hold shareholders or members liable.
Failure to Observe Corporate Formalities: Corporations and LLCs are required to observe certain formalities, such as holding regular meetings, maintaining separate financial records, and avoiding commingling of personal and corporate assets. If these formalities are not observed and the corporate structure is used as a mere façade, courts may disregard the corporate entity.
Alter Ego: If there is such a unity of interest and ownership between the corporation and its shareholders or members that the separate personalities of the corporation and the individuals no longer exist, courts may treat the corporation as the alter ego of its owners and hold them personally liable.
Group Enterprises: In some cases, where multiple corporations are closely related or form part of a single economic unit, courts may pierce the corporate veil to achieve equity, particularly if one corporation's actions harm creditors or other stakeholders and the corporate structure is being used to shield culpable parties from liability.
More Related Content
Similar to Why MAP Polices Fail and What You Can Do So Your Policy Doesn't
This document discusses brands, trademarks, and advertising. It begins by defining what a brand is, noting that a brand comprises a product or service, packaging, name/logo, promotion, and appeals to customers physically, aesthetically, rationally, and emotionally. It then defines what a trademark is, explaining that it distinguishes one company's goods/services from another's. The document recommends conducting trademark searches to identify potential issues and minimize risks. It also explains why trademarks should be registered, providing exclusive rights and prima facie evidence of ownership. The document concludes by discussing proper trademark use and marking.
This document summarizes legal issues related to unauthorized online sales of genuine branded goods. It discusses how unauthorized dealers can exploit loopholes like the first sale doctrine while undercutting authorized dealers. However, trademark owners can still pursue infringement claims if goods are materially different or fail to meet quality control standards. The document also outlines other potential legal approaches like copyright claims, false advertising, and secondary liability theories against platforms enabling unauthorized sales.
Unfair and Deceptive Acts and Practices Enforcement: Is your Facility at Risk?Jim Radogna
In this informative webinar, KPA F&I experts Jim Radogna and Ryan Lane will address these potential and legal pitfalls and suggest best practices for avoiding being caught up a “UDAP Trap.”
Avoiding and Resolving Disputes over Unsatisfactory ComponentsKristal Snider
The document discusses best practices for managing suppliers and avoiding disputes, including establishing trusted vendor programs, conducting due diligence on vendors, implementing quality control measures, using clear terms and conditions in contracts, addressing counterfeit issues, and resolving disputes through mediation rather than litigation. It emphasizes the importance of open communication, data sharing, and industry involvement to strengthen the global supply chain.
What A Babies R Us Class Action Lawsuit Can Teach Us About Successful Distrib...Heather Cooper
The Babies "R" Us class action lawsuit demonstrates that vertical price restraint claims can still proceed under federal antitrust law despite recent Supreme Court precedents. The lawsuit alleges that Babies "R" Us coerced baby product manufacturers into preventing online retailers from discounting in order to maintain higher prices. While the Supreme Court made vertical price restraint cases more difficult to bring, this lawsuit survived motions to dismiss, showing that room remains for such claims. The lawsuit also provides lessons for manufacturers and retailers regarding distribution strategies, such as avoiding pressure from dominant retailers and considering unilateral resale price maintenance policies.
Tips From an FTC Pro: How to Avoid Becoming an FTC TargetAffiliate Summit
This presentation is from Affiliate Summit East 2018 (July 29 - July 31, 2018 in New York).
Session description: The Trump FTC has been cracking down on Internet marketers and tightening the noose around affiliates and others in their ecosystem. Learn from an FTC expert how to stay compliant and avoid “FTC Jail”.
10 07-14 hosting con europe 2014 presentation unannotatedwdsnead
The document discusses creating effective global contracts for internet businesses. It provides tips for drafting clear and compliant contract language while protecting the business. Key points include conducting a thorough review of contracts, ensuring data protection and security compliance as a competitive advantage, starting from the customer's perspective, and addressing issues like indemnification, warranties and service level agreements in plain language terms. The presenters provide expertise in international legal advice and European data protection law.
Unfair and Deceptive Acts & Practices Seminar - Chicago Automobile Trade Asso...Jim Radogna
Dealers have plenty to worry about when it comes to rules and regulations governing the industry, but perhaps the most harrowing are known as “UDAPs”.
Unfair and Deceptive Acts and Practices (UDAP) statutes are consumer protection laws that address what lawmakers consider to be “unethical” or otherwise “bad” business practices. The FTC Act and the Illinois Consumer Fraud and Deceptive Business Practices Act both prohibit unfair or deceptive acts or practices. These statutes have far-reaching implications for auto dealers because they provide for enforcement by the government to stop the practices, individual actions for damages brought by consumers who are hurt by the practices, and even criminal liability.
Dealers need to be aware that these statues are extremely broad and not only prohibit acts and practices that fall directly under the purview of specific laws, but also any other practice that is determined to be unfair or deceptive to the consumer. A behavior can be found to be unfair and deceptive and thus actionable even though it does not constitute fraud, breach of contract, or negligence under more traditional law. As a result, UDAP claims are a favorite among consumer attorneys – especially those seeking class action lawsuits.
There are a wide variety of dealer sales, F&I, and advertising practices that may be considered to be unfair or deceptive by regulators or courts. Some of these are commonly-known, while others may surprise you.
In this informative seminar we’ll address these potential legal pitfalls and suggest best practices for avoiding being caught up in a “UDAP Trap”.
This seminar is highly recommended for dealership upper management as well as sales managers, F&I personnel, sales consultants, and others – anyone who interacts with, or markets to, consumers.
Trademark Law - Brand protection in the digital ageJudy Yen
Brand protection is important to protect goodwill and prevent consumer confusion. A brand is a source identifier that distinguishes goods and services. Trademarks associate an idea with an object or service. While patents protect novel inventions and copyrights protect original works, trademarks protect brands and prevent passing off. Trademark enforcement involves notifying infringers and potentially filing litigation. New challenges include cybersquatting, securing social media handles, and preventing app infringement. Vigilance is key to protecting brands in the digital age.
On May 1st Digital BrandWorks, an INC 500 digital consultancy, and Greenberg Traurig, an international law firm, pulled together some of the best thought leaders in ecommerce strategy, policy and execution to hold a panel discussion on the state of ecommerce today.
This event was the first in a series that will focus on how manufacturers and retailers can increase sales, protect margin, develop legal and comprehensive pricing policies to generally protect their brands online.
Joe Scartz, the CMO of Digital BrandWorks, spoke about the trends in ecommerce that impact every business. Specifically he covered:
How shopping has changed as ecommerce has continued to grow. Ecommerce is now 6% of total retail sales
The pain that bricks and mortars stores have experienced during this transition
The rise of Amazon as a preeminent retail player
Top Ecommerce categories
Brands selling direct
Mobile shopping growth
Showrooming and its impact on business
The growing trend of reverse showrooming
Omni-channel marketing and retailing and the future of retail
Tony Chvala, VP of Marketplace at Sears, spoke about tax issues facing etailers and tax nexus issues.
Irv Scher, Partner at Greenberg Traurig spoke about MAP policies and related ecommerce pricing issues. Specifically he covered:
Selecting customers and limitations placed on those customers
Resale price maintenance
Areas suppliers should stay away from when having pricing discussions
Promotional pricing
Minimum Advertised Price Policies
Pricing Incentive
Steve Wadyka, Partner at Greenberg Traurig spoke about Brand Enforcement Online. Specifically he covered:
Challenges facing brand owners in internet enforcement
Search engine and keyword advertising
Domain name registrars
Counterfeiting and fraud as related to auction sites, online marketplaces, web hosting providers, payment processors and social media
Rogue websites
Joe Scartz spoke about increasing online sales and protecting margin. Specifically he covered
Minding your brand
Knowing how to monitor your brand online
Review of a SKU Score which diagnoses problems related to product listing, pricing, sellers, product score, distribution on ecommerce retail sites
Selling direct as a manufacturer
Marketing and merchandising in the online channel
Managing online retailers to increase velocity
We’d like to thank everyone who attended the event and everyone that organized the event for making this an insightful and valuable gathering.
This document discusses legal and ethical issues in retailing. It covers two main categories of issues - ethical issues and legal issues. Ethical issues relate to explicit and implicit codes of conduct, while legal issues involve laws that make certain activities punishable. Specific topics covered include misuse of company assets, employee theft, consumer fraud, ethics policies, relationships with customers, site location considerations regarding environmental and zoning laws, equal employment opportunities, compensation, employee safety and privacy laws, and unethical advertising practices. Unethical purchasing practices for merchandise such as terms and conditions, commercial bribery, and chargebacks are also examined.
This document discusses brand licensing and celebrity endorsements. It defines brand licensing as leasing a brand name to another company, provides examples, and outlines the licensing process and benefits to licensors and licensees. Celebrity endorsements are defined as using a famous person to promote a product or service. The purpose is generally to increase sales and attract customer attention. Celebrities are commonly used to endorse high-priced, popular products that need to coordinate diverse customer groups.
Connecticut Automotive Retailers Association 2016 Dealer SymposiumJim Radogna
This document discusses unfair and deceptive acts and practices (UDAP) statutes and how they apply to automobile dealers. It notes that UDAP statutes cover virtually all aspects of a dealership's operations and interactions with customers. Violations can result in enforcement actions and lawsuits brought by government agencies and private attorneys. Key points are that even inadvertent violations are actionable, oral representations may create liability, and misleading omissions or ambiguous statements can violate UDAP statutes. The document provides examples of recent UDAP cases and penalties against dealerships and advises best practices for legal compliance.
This document provides an overview of key legal issues related to running a digital news business. It covers topics such as trademarks and domain names, privacy, terms of use, contracts, user generated content, and native advertising. For trademarks, it discusses when to register, the registration process, and infringement. For privacy, it outlines personally identifiable information versus non-PII, building a basic privacy program, and questions around mobile, international, and big data. For terms of use and contracts, it provides advice on click-through agreements, indemnification, and advertising sales terms. It also covers rules for native advertising and sponsored content.
Managing Risk: Legal Issues for Affiliate Marketers & Affiliate Marketing Man...Adler Law Group
Affiliate marketing is one of the most cost-effective techniques for monetizing web site traffic and driving sales. Unfortunately, it has a reputation for high risk. While the industry is unlikely to ever be risk-free, it is possible to manage risk by: (1) understanding how techniques like behavioral and contextual targeting affect consumers, affiliates and merchants, (2) understanding the legal and regulatory environment, (3) understating risks involved with prospective marketing partners, (4) using and maintaining proper contracts that allocate risk and provide appropriate indemnifications, and (5) keeping informed about the changes in technology, marketing practices and the regulatory environment. Attendees will learn how to identify these issues and develop policies and procedures to keep informed about the current technology, marketing strategies and regulatory compliance.
Topics covered include:
Behavioral/Contextual Advertising
Regulatory/Industry Compliance : FTC Guides & Enforcement Actions
CAN-SPAM compliance
IP Law: Rules governing use of others™ Trademarks/Keywords, Right of Publicity/Endorsement Issues.
Identifying, protecting against, and disputing accusations of Click-Fraud
This presentation by Rachel Brass, Partner, Gibson Dunn, was made during the discussion “Hub-and-spoke arrangements” held at the 132nd meeting of the OECD Competition Committee on 4 December 2019. More papers and presentations on the topic can be found at oe.cd/hsa.
Misleading Advertisement And Their Impact On Consumers Trust.pptxMohammadRasel46
This document summarizes a presentation about misleading advertisements and their impact on consumer trust. It discusses how advertisements sometimes provide inaccurate or misleading information about products. It provides examples of types of misleading claims, such as incorrect ingredients or exaggerated product sizes. The presentation also examines how manufacturers mislead consumers through unfair contract terms, improper use of customer data, and misleading digital ads. Several brands are called out for claims about their products that have been found misleading. The presentation recommends that consumers be cautious of advertising claims and report misleading ads to authorities to protect trust in the marketplace.
The wrong way and right way of retaining a testing laboratoryKristal Snider
The document discusses the issue of counterfeit parts in the supply chain. It notes that there is a lack of accountability and communication between organizations regarding counterfeit testing. Proper testing protocols, quality control, and traceability practices need to be established. The document recommends that distributors and customers work together to select testing facilities and ensure testing is sufficient. It provides tips for how to properly select testing facilities and what to include in procurement contracts to help prevent counterfeit parts.
AutoCon2012 Workshop - Dealer Compliance in a Digital Age - with Jim RadognaJim Radogna
This document discusses best practices for car dealers to avoid legal issues related to their digital advertising and presence. It outlines six key areas that regulators are focusing on: online advertising, online reviews, social media, contests and sweepstakes, text message marketing, and online privacy. The document provides examples of car dealers receiving fines for misleading advertising online and warns that regulators are actively monitoring dealers' digital activities. It provides guidance on ensuring advertising and online reviews comply with regulations to avoid fines or lawsuits.
Similar to Why MAP Polices Fail and What You Can Do So Your Policy Doesn't (20)
Lifting the Corporate Veil. Power Point Presentationseri bangash
"Lifting the Corporate Veil" is a legal concept that refers to the judicial act of disregarding the separate legal personality of a corporation or limited liability company (LLC). Normally, a corporation is considered a legal entity separate from its shareholders or members, meaning that the personal assets of shareholders or members are protected from the liabilities of the corporation. However, there are certain situations where courts may decide to "pierce" or "lift" the corporate veil, holding shareholders or members personally liable for the debts or actions of the corporation.
Here are some common scenarios in which courts might lift the corporate veil:
Fraud or Illegality: If shareholders or members use the corporate structure to perpetrate fraud, evade legal obligations, or engage in illegal activities, courts may disregard the corporate entity and hold those individuals personally liable.
Undercapitalization: If a corporation is formed with insufficient capital to conduct its intended business and meet its foreseeable liabilities, and this lack of capitalization results in harm to creditors or other parties, courts may lift the corporate veil to hold shareholders or members liable.
Failure to Observe Corporate Formalities: Corporations and LLCs are required to observe certain formalities, such as holding regular meetings, maintaining separate financial records, and avoiding commingling of personal and corporate assets. If these formalities are not observed and the corporate structure is used as a mere façade, courts may disregard the corporate entity.
Alter Ego: If there is such a unity of interest and ownership between the corporation and its shareholders or members that the separate personalities of the corporation and the individuals no longer exist, courts may treat the corporation as the alter ego of its owners and hold them personally liable.
Group Enterprises: In some cases, where multiple corporations are closely related or form part of a single economic unit, courts may pierce the corporate veil to achieve equity, particularly if one corporation's actions harm creditors or other stakeholders and the corporate structure is being used to shield culpable parties from liability.
Sangyun Lee, 'Why Korea's Merger Control Occasionally Fails: A Public Choice ...Sangyun Lee
Presentation slides for a session held on June 4, 2024, at Kyoto University. This presentation is based on the presenter’s recent paper, coauthored with Hwang Lee, Professor, Korea University, with the same title, published in the Journal of Business Administration & Law, Volume 34, No. 2 (April 2024). The paper, written in Korean, is available at <https://shorturl.at/GCWcI>.
The Future of Criminal Defense Lawyer in India.pdfveteranlegal
https://veteranlegal.in/defense-lawyer-in-india/ | Criminal defense Lawyer in India has always been a vital aspect of the country's legal system. As defenders of justice, criminal Defense Lawyer play a critical role in ensuring that individuals accused of crimes receive a fair trial and that their constitutional rights are protected. As India evolves socially, economically, and technologically, the role and future of criminal Defense Lawyer are also undergoing significant changes. This comprehensive blog explores the current landscape, challenges, technological advancements, and prospects for criminal Defense Lawyer in India.
What are the common challenges faced by women lawyers working in the legal pr...lawyersonia
The legal profession, which has historically been male-dominated, has experienced a significant increase in the number of women entering the field over the past few decades. Despite this progress, women lawyers continue to encounter various challenges as they strive for top positions.
Guide on the use of Artificial Intelligence-based tools by lawyers and law fi...Massimo Talia
This guide aims to provide information on how lawyers will be able to use the opportunities provided by AI tools and how such tools could help the business processes of small firms. Its objective is to provide lawyers with some background to understand what they can and cannot realistically expect from these products. This guide aims to give a reference point for small law practices in the EU
against which they can evaluate those classes of AI applications that are probably the most relevant for them.
Business law for the students of undergraduate level. The presentation contains the summary of all the chapters under the syllabus of State University, Contract Act, Sale of Goods Act, Negotiable Instrument Act, Partnership Act, Limited Liability Act, Consumer Protection Act.
सुप्रीम कोर्ट ने यह भी माना था कि मजिस्ट्रेट का यह कर्तव्य है कि वह सुनिश्चित करे कि अधिकारी पीएमएलए के तहत निर्धारित प्रक्रिया के साथ-साथ संवैधानिक सुरक्षा उपायों का भी उचित रूप से पालन करें।
Why MAP Polices Fail and What You Can Do So Your Policy Doesn't
1. Why MAP Policies
Fail and What You
Can Do So Your
Policy Doesn’t
Whitney Gibson
Laura Erdman
2. Who We Are
• Vorys, Sater, Seymour and Pease LLP was
established in 1909 and currently has 375 attorneys
in seven offices nationwide
• Currently ranks as one of the 200 largest law firms in
the U.S., according to American Lawyer magazine
• Vorys has been identified by 17 Fortune 500
companies as a go-to law firm
3. Vorys Online Seller Enforcement Group
• Developed comprehensive graduated enforcement systems
that many companies use today to address MAP violations,
unauthorized sellers, traffic diversion schemes, misleading
adds, defamation attacks and other online brand threats.
• Works with companies across the country on global
enforcement programs.
• Regularly speaks and writes on strategies for stopping
unauthorized online sales, and other online brand threats,
including the SF ACC, DSA Annual Meeting, DSA Global
Summit, Law360, etc.
4. Vorys Online Seller Enforcement
Whitney Gibson
Partner
Daren Garcia
Partner
Adam Sherman
Partner
Ken Rubin
Partner
Herbert Hedden
Partner
T. Blake Finney
Associate
Amanda Roe
Associate
Laura Erdman
Associate
Leslie Allen
Associate
Jordan Cohen
Associate
Maureen Kelly
Associate
Samuel Yamron
Associate
Bridget Sedlock
Associate
Meredith Caplan
Associate
6. Need Good Technology
• Sellers play games
• Below MAP nights/weekends
• Will deny violations
• Report reliable results
7. Key Items to Facilitate Identifications
• Need list of screennames/websites of authorized sellers
• Prohibit anonymous sales
• Online channel restrictions
• Incorporate in online seller agreement/policy
• Ability to subpoena if necessary
8. Unauthorized Sellers Have a Higher
Tendency to Violate MAP Policies
SOURCE: http://insight.kellogg.northwestern.edu/article/when-retail-prices-cross-the-line
15% of authorized retailers
violate MAP policies
53% of unauthorized retailers
violate MAP policies
9. Northwestern Study
“Overall, the researchers urge manufacturers
to focus on both authorized and unauthorized
retailers when it comes to MAP violations”
See https://insight.kellogg.northwestern.edu/article/when-retail-prices-cross-the-line
11. Companies Often Do Not Have Valid Legal Claims
Against Third-Party Unauthorized Sellers
MAP
Policy
12. Law
First Sale Doctrine:
Once a trademark owner sells a product,
the buyer ordinarily may resell the product
without infringing the trademark
13. Material Difference Exception
• “The threshold of materiality must be kept low . . .
because it is the subtle differences that consumers are
most easily confused.”
• Only one material difference is sufficient to bring a
trademark infringement claim
• Material differences do not have to be “physical” to
establish trademark infringement
16. Trademark Claim Supported by Case Law
• Material difference found when the non-genuine product is not subject to the same
warranty as the genuine product.
• Bayer Corp. v. Custom Sch. Frames, LLC, 259 F. Supp. 2d 503 (E.D. La. 2003); TracFone Wireless, Inc. v. Pak China Grp. Co.,
843 F. Supp. 2d 1284 (S.D. Fla. 2012); Beltronics USA, Inc. v. Midwest Inventory Distrib., LLC, 562 F.3d 1067 (10th Cir. 2009);
Fender Musical Instruments Corp. v. Unlimited Music Ctr., Inc., No. 3:93CV2449, 1995 U.S. Dist. LEXIS 15746 (D. Conn. Feb.
16, 1995); RFA Brands, LLC v. Beauvais, No. 13-14615, 2014 U.S. Dist. LEXIS 181781 (E.D. Mich. Dec. 23, 2014); Heraeus
Kulzer LLC v. Omni Dental Supply, No. 12-11099-RGS, 2013 U.S. Dist. LEXIS 91949 (D. Mass July 1, 2013); Bel Canto
Design, Ltd. v. MSS HiFi, Inc., 837 F. Supp. 2d 208 (S.D.N.Y. 2011); Montblanc-Simplo GmbH v. Staples, Inc., 172 F. Supp. 2d
231 (D. Mass. 2001).
19. Trademark Claim Supported by Case Law
• The fact that the non-genuine product did not inform consumers of
or allow consumers to participate in the company’s promotions
constituted a material difference.
PepsiCo v. Pacific Produce, Ltd., No. 99-1326-PMP-RLH, 2000 U.S.
Dist. LEXIS 12085 (D. Nev. May 4, 2000); PepsiCo, Inc. v. Longmont
Packing, No. 99 D 1077, 1999 U.S. Dist. LEXIS 12811 (D. Colo. Aug. 2,
1999); PepsiCo, Inc. v. Giraud, 7 U.S.P.Q. 2d 1371 (D. P.R. 1988);
Bayer Corp. v. Custom Sch. Frames, LLC, 259 F. Supp. 2d 503 (E.D.
La. 2003).
21. Exception #2 – Quality Controls
• “A product is not truly ‘genuine’ unless it is manufactured and
distributed under quality controls established by the manufacturer.”
• “[A] trademark holder is entitled to an injunction against one who
subverts its quality control measures upon a showing that (i) the
asserted quality control procedures are established, legitimate,
substantial, and nonpretextual, (ii) it abides by these procedures,
and (iii) sales of products that fail to conform to these procedures
will diminish the value of the mark.”
22. Policy For Vetting Potential Retailers
• Review legal claims
• Bankruptcies
• Online reviews
• Any complaints about delivering
damaged/defective products
23. Policy/Practice for Checking
on Authorized Sellers
• Checking on your authorized retailers to make
sure they are selling quality, non-damaged
• Practice/policy for terminating retailers that sell
damaged or expired products to customers
24. Quality Control Example 1: Policy for Retailers to Remove,
Return Damaged/Defective Products
26. Recall Policy
• Involves quickly reaching out to authorized
sellers
• Involves being able to contact customers
through information obtained by authorized
sellers
29. Add Provision to Support Tortious
Interference Claim
• Retailers cannot sell to others for purposes of resale.
e.g. Australian Gold, Inc. v. Hatfield, 436 F.3d 1228, 1235-38 (10th Cir. 2006) (affirming $500,000
damages award for tortious interference with a dealer agreement)
30. Legal Claims Against All Unauthorized Sellers
We make subtle revisions to
retail agreements to create:
1) Material differences;
2) Differences of quality
controls; and
3) Tortious interference with
contract claims.
MAP
Policy
31. Enforcing MAP in Traditional Model
Manufacturer
Unknown Reseller
Reseller
Manufacturer
Distributor Distributor
Reseller Reseller Reseller
MAP Policy & Enforcement MAP Policy & Enforcement
32. Uncontrolled Distribution
Manufacturer
Distributor
Unknown Reseller
eBay Jet Other 3P
Marketplaces
Unknown Reseller
eBay Jet Other 3P
Marketplaces
Unknown Reseller
eBay Jet Other 3P
Marketplaces
Unknown Reseller
eBay Jet Other 3P
Marketplaces
Unknown Reseller
Distributor
Unknown Reseller
eBay Jet Other 3P
Marketplaces
33. Authorized Reseller Program
Manufacturer
Distributor Distributor
Authorized
Reseller
Authorized
Reseller
Authorized
Reseller
Authorized
Reseller
Authorized
Reseller
Control Online Sales Control Online Sales Control Online Sales
34. Authorized Reseller Program
Manufacturer
Distributor Distributor
Authorized
Reseller
Authorized
Reseller
Authorized
Reseller
Authorized
Reseller
Authorized
Reseller
Communicate and Enforce MAP and Other Policies
35. Example: Authorized Distributor Policy
By purchasing manufacturer’s products for resale, they acknowledge:
― They have received the MAP Policy
― They will adhere to quality controls
― They will only sell to Authorized Resellers
― They will not sell online without permission
― They will not sell to any reseller on the “do not sell” list
36. Example: Authorized Reseller Policy
Products purchased from distributors may only be resold by Authorized Resellers that
adhere to policy; by offering products for sale, Resellers agree to the following:
― They can only sell to end-users or to other Authorized Resellers
― They have received the MAP Policy
― They are prohibited from selling online without the manufacturer’s permission
― They are required to abide by applicable quality controls
― The warranty is available only on products sold by Authorized Resellers
37. Example: Authorized Online Reseller Policy
Products may be sold online only by Authorized Resellers who:
1. Register and get approval for all websites, storefronts, and screennames
2. Agree to abide by Authorized Online Reseller Policy:
• No anonymous selling
• Follow manufacturer’s marketing/trademark use guidelines
• Data security/privacy
• Manufacturer may revoke approval for Authorized Reseller to sell online
at any time
40. Misleading Ads Divert Customers to
Unauthorized Sales
• Advertisers use misleading ad-
copy to divert customers to
unauthorized sales
• Ads claim to offer deep
discounts
• Ads direct customers to
competing products
Example search for “Doterra Discount”
41. Ads Affiliated With Unauthorized Sales and
Listings for Competing Products
Result:
Customers purchase
products from
unauthorized sellers
rather than authorized
consultants/official
channels
42. “Reviews” to Sell Competing Product
• Reviews pass themselves
off as unbiased
• Usually contain some
positive aspects of each
products to support
objective appearance
43. Reviews are Not Neutral or Objective
Reality:
The comparison
review is designed to
promote the “top
rated product”
44. Review Sites Earn Money Through Affiliate Links
The “top rated” product review is, unsurprisingly,
the only eye cream review with purchase links.
45. Fraudulent Apps
• Growing area of brand abuse
• Difficult for consumers to
distinguish official vs. fraudulent
46. Apps – A Growing Problem
App stores have little
initial screening to ensure
apps are authentic
Result:
Widespread misuse of
trademarked names/logos
47. Different Types of Diversion Schemes
1. Cybersquatting/Typosquatting
2. Bogus Review Websites
3. Pay Per Click Ad Abuses
4. Fraudulent/Scam Websites
5. False Associations
6. SEO Manipulation
7. Association With Offensive Content
8. Mobile App Fraud
48. Company Does Not Have a Sufficient
Budget To Allow For Comprehensive
Enforcement
49. Understand Financial Impact – Justification
for Resources
• Involve person with finance background to measure
impact of MAP violations, unauthorized sales, and ROI
• Track financial KPIs - sales, margins, revenues, profits
50. Company Sells Through Many Online Resellers,
Some of Which are Not Trustworthy
• Select online retailers that are supportive of
MAP/Unauthorized Sales enforcement
• Retailers with limited assortment more likely to violate
MAP
51. Company is Scared to Deliver
Real Consequences
• Authorized
― Unclear on actions
― Unwilling to enforce against powerful resellers
― Incentives/disincentives lack teeth
― Too many allowed strikes
― Bad behaviors allowed
― Inconsistent enforcement
• Unauthorized Sales
― Whack-a-mole takedowns will not work
― Need more than C&D letter (need comprehensive enforcement)
― Unauthorized sellers have to believe there will be consequences
52. Companies Only Take Reactive Approach,
Not Proactive
• Issue press release regarding
enforcement against
unauthorized sellers
• Communicate with authorized
sellers about enforcement
54. Third-Party Marketplaces are Growing
- Launched in 2005
- 1.7M active sellers
- 26.1M active buyers
- $2.39B annual gross
merchandise sales
- Originally launched
marketplace for third-party
sellers in 2010
- Oct. 2016, company
began to role out
“Marketplace” feature
through its app in the
United States, the U.K.,
Australia and New Zealand
- Initially launched in 2009,
had a long trial period
- Apr. 2016 begins working
with marketing firm to
compete with eBay,
Amazon
- Launched in 2014
- Acquired by
Walmart in Aug.
2016
- Leading Japanese e-
retailer
- Debuted in the United
States in 2013
- Originally launched in 2010
- Re-launched in 2014
- Launched home products
marketplace in 2014
- App launched in 2011
- Eyeing potential IPO, per
Wall Street Journal
- App launched in 2013
- Debuted in the United
States in 2014
57. Tsunami of Unauthorized Sellers Online
Unauthorized sellers lack
• Storage, transportation and
inspection of policies and procedures
• Policies for removing damaged
goods
• Appropriate packaging to protect the
integrity of the product
58. Additional Resources
Whitney C. Gibson
Vorys, Sater, Seymour and Pease LLP
513.723.4823| wcgibson@vorys.com
www.onlinesellerenforcement.com
@WhitneyCGibson
Editor's Notes
First Sale Doctrine:
Once a trademark owner sells a product, the buyer ordinarily may resell the product without infringing trademark
First Sale Doctrine does not apply:
When products are sold with differences in warranty, guarantee, return policy, promotions, customer service, instructions or other material differences
When products are sold by sellers who do not adhere to manufacturer’s quality controls
JG
Our firm has created a unique strategy that is productive, efficient and affordable in a competitive market.