Finnegan has broad experience across all aspects of advertising protection and has successfully achieved swift resolutions for clients, including obtaining restraining orders. We know how to navigate the nuances of U.S. advertising law, from advertising clearance and claim substantiation counseling to all aspects of litigation, including the Lanham Act and consumer class action lawsuits. Our work includes addressing advertising issues on both traditional and social media platforms.
Even before a campaign is created, we work with clients to ensure that agency contracts meet the client’s specific legal needs. Once a creative concept is pitched and adopted, we routinely advise clients regarding all aspects of a campaign including creative review, launch, and customer engagement and feedback. Our initial review includes vetting for intellectual property, rights of publicity, claims substantiation, regulatory compliance, talent/influencer contracts, and other legal issues. When launching a campaign, we can advise on compliance with television network and social media platform rules. Our attorneys regularly work with companies of varying size on customer engagement and feedback counseling, including advice regarding deploying influencers, identifying, capturing, and increasing viral marketing opportunities, and assisting with promotions, sweepstakes, and contests.
We consider advertising and intellectual-property issues as they relate to social media platforms every day. We are familiar with the user agreements of the currently-popular platforms and keep an ear to the ground for emerging platforms. We are intimately familiar with viral marketing, including use of user-generated content and FTC guidelines for endorsements, sponsored content, the use of influencers, and testimonials; native advertising; and rules and regulations promulgated by the International Olympic Committee and other sports governing bodies regarding the use of athletes, venue “flash” advertising, and related attempts at unauthorized association.
We routinely vet our clients’ advertising materials to identify potential issues, including concerns related to substantiation of assertions of quality and performance; mentioning and discussing competitors and their products, services, and technologies; using endorsers, influencers, and customer testimonials; and leveraging earned media coverage. We also advise clients on claims with a particular regulatory focus, including safety claims, pricing claims, environmental claims, country-of-origin claims, “Made in America” claims, ingredient/component claims, and claims involving ISO, ANSI, and other relevant standards-creating bodies.
As part of our vetting work, we have experience with disclaimers and disclosures required or recommended by state and federal regulatory agencies and media companies, including television networks and social-media platforms. Because of our deep litigation experience, we also know what kinds of disclaimers are generally considered effective by courts and competitors, and which ones are not. We also monitor FTC and NAD actions and announcements regarding television and internet advertising and related disclaimers and disclosures, and bring to clients’ attention any matters of interest.
Finnegan advises companies regarding the legal requirements of promotions, sweepstakes, and contests. We prepare official rules and promotion details that comply with local, state, and federal law; ensure compliance with social media platform rules. We also advise clients regarding compliance with state registration and bonding requirements. We review print, radio, television, direct mail, and internet advertising to confirm which rules disclosures may be required. We regularly work with promotion/sweepstakes/contest vendors engaged to assist clients with the administration and management of a particular promotion.
From vetting traditional advertising, social media, and press releases—to drafting relevant agreements and licenses—to working with experts to value and commercialize rights—to litigating and negotiating settlements if a dispute arises, we have been involved in all aspects of right-of-publicity issues. We have also been there when clients used, or wanted to use, social media or press coverage of celebrities and others using their products publicly. Like the process for vetting advertisements, we combine an understanding and appreciation of your business goals with the desire to mitigate risk.
We review local, state, and federal regulations related to the goods at issue to confirm the labels include all required information in acceptable formats. We evaluate claim substantiation issues, focusing on whether the benefits, quality, and performance claims can be supported with the relevant data. For intellectual-property review, we consider whether the product labels or packaging may infringe third-party copyright, trademark, or design patent rights. After we complete our evaluation, we provide suggested revisions or modifications to mitigate risk, if necessary. Finnegan is familiar with the FTC’s warranty requirements under the Magnuson-Moss Warranty Act and the related amendments of the E-Warranty Act of 2015. We can assist clients with conforming its warranty programs, disclosures, and processes to comply with such requirements, as well as any regulatory or consumer actions related to those regulations.
At the lower court, Finnegan prevailed on a Rule 12(b)(6) motion for client Subaru of America. In that suit, the plaintiff asserted trademark and copyright infringement, trademark dilution, and false advertising against Subaru’s annual “Share the Love” holiday-season campaign, which donates money from car purchases to various buyer-designated national and local charities. Subaru’s campaign uses a particular logo comprised of a heart on a hand, and various other “love”-themed designs.
The plaintiff sought enhanced damages, punitive damages over $20 million, and attorneys’ fees. Subaru’s motion to dismiss was based largely on the facial dissimilarities between the parties’ respective designs, which the U.S. District Court for the Northern District of California granted on all counts asserted in the complaint, without leave to further amend.
The plaintiff appealed to the Ninth Circuit, which affirmed the lower court’s decision after finding that the plaintiff did not plausibly allege any claim. The appeals court later denied plaintiff’s petition for rehearing. Consistent with the lower court’s opinion, the Ninth Circuit ruled that the marks at issue were so facially dissimilar that they could not plausibly create a likelihood of confusion, and affirmed the dismissal of the trademark dilution, copyright infringement, and false advertising claims for the same reasons, resulting in a complete win for Subaru.
16-16840, 9th Cir., Judges Lucero, Owens, Thomas
3:16-cv-03384, N.D. Cal., Judge Chesney
2:13-cv-04222, C.D. Cal., Judge Olguin
5:16-cv-00906, N.D. Cal., Judges Cousins, Freeman
1:13-cv-00707, S.D. Ohio, Judge Dlott
1:15-cv-00369, D. Md., Judge Blake
0:12-cv-62101, S.D. Fla., Judges Scola, Snow
Workshop
Life Sciences Workshop: Updates and Key Trends in Pharmaceutical and Biotechnology IP Law
May 2, 2024
Cambridge
Ad Law Buzz Blog
“Banning” a Banned Ingredients Claim: NAD’s Application (and Expansion) of the FTC’s Green Guides
March 18, 2024
Award/Ranking
Finnegan Tops the 2024 World Trademark Review 1000, Receiving New Regional Accolade
February 13, 2024
Press Release
Finnegan Adds Jenevieve Maerker to Its Trademark, Copyright, and Advertising Practice
April 19, 2023
Announcement
World Trademark Review Recognizes Three Finnegan Partners as Global Leaders
October 17, 2022
Announcement
Managing Intellectual Property Recognizes Three Finnegan Partners as Rising Stars
October 12, 2022
Due to international data regulations, we’ve updated our privacy policy. Click here to read our privacy policy in full.
We use cookies on this website to provide you with the best user experience. By accepting cookies, you agree to our use of cookies. Please note that if you opt not to accept or if you disable cookies, the “Your Finnegan” feature on this website will be disabled as well. For more information on how we use cookies, please see our Privacy Policy.
Finnegan is thrilled to announce the launch of our new blog, Ad Law Buzz, devoted solely to breaking news, developments, trends, and analysis in advertising law.