In a world where social media influencers can wield more power over consumers than network media buys, the Federal Trade Commission’s (FTC) Endorsement Guides felt increasingly like a relic from an earlier era. While not wholly ineffective, the FTC’s formal guidance to businesses on the use of endorsements and testimonials in advertising was still a policy with roots in the limited media environment of the 1970s, the decade when the Guides originated. There were no Instagram influencers, no sponsored posts, and no hashtags in 1980, when the Guides were finally enacted, and even cable television was in its infancy. And despite important and well-intentioned 2009 amendments crafted during the early days of social media, so much has happened in the intervening years that the Guides never seemed fully engaged with the radical implications of a marketing environment where blurring the lines between advertising and reality is more often a feature rather than a bug.
Faegre Drinker Biddle & Reath LLP (Faegre Drinker) launched global operations on February 1, 2020. Faegre Drinker is the combination of Faegre Baker Daniels, an international law firm with deep roots in the Midwest, and Drinker Biddle & Reath LLP, a full-service national law firm with storied East Coast origins.
With more than 1,300 attorneys, consultants and professionals in 22 locations across the U.S., U.K. and China, Faegre Drinker is one of the nation’s 50 largest law firms based on size and projected gross revenue.
We are very excited to introduce TCAMToday, Faegre Drinker’s successor to the DB®anding Blog. Our newly expanded team of over 30 T-CAM professionals will continue to provide fresh commentary on Trademark, Copyright, Advertising and Media topics ranging from anticounterfeiting to sweepstakes and promotions. Watch this space!
As we mentioned last month in our kickoff post on this topic, we are excited to dive deeper into the world of sweepstakes and promotions law. This post explores several key elements to keep in mind when formulating the official rules and abbreviated rules for a promotion.
The main goal of the official rules in any promotion is two-fold: (a) to inform participants and the public regarding the details of the promotion, and (b) to comply with a series of federal and state laws and regulations. Both of these goals are critical – no company wants to face either disgruntled participants or angry regulators.
The rules must be in place and finalized before the promotion begins. If you are running a U.S.-based sweepstakes with a total prize value of over $5,000, you may also be required to register and bond the promotion with various state agencies up to thirty days before the promotion begins. Registration will require you to submit a copy of the promotion rules, so keep in mind that in those cases, the rules must be finalized at least thirty days before the beginning of the promotion. That means the clock is ticking! Depending on the type of promotion, other state laws and regulations may also be implicated, so be sure to check well before the beginning of the promotion. Continue reading
As we proudly admit on this blog’s “About Us” page, we’re passionate about all things brand related – and what better way to promote your brand than by running a sweepstakes or contest? At a time when we are seeing the “gamification” of every part of our lives, it should come as no surprise to see that many brands now include prizes and rewards as a significant component of their consumer outreach. Where once upon a time this was a niche explored by only a handful of large companies or fly-by-night operators, today, prize promotions are seen by many of our clients as among their most effective forms of advertising.
The concept is wonderfully simple: in a prize promotion, someone enters the promotion, and someone wins a prize. Yet this basic formulation encompasses a nearly endless number of variations, including sweepstakes, contests, games, trade promotions, sales incentives and viral engagement. Some of these variants are legal; some are not. And because we have been so passionate about sweepstakes and contests for so long, we’ve decided to explain the basics in a helpful, multi-post series on the topic. There’s a lot of nuance, and it would be impossible to cover it all in one place, but we think that once we’re done you’ll be as excited about this area of the law as we are. Continue reading
This past weekend, the Brand Activation Association (BAA), a division of the Association of National Advertisers (ANA), held its 38th Annual Marketing Law Conference in Chicago, Illinois. The author, along with two other members of Drinker Biddle’s branding team, attended the conference, which is widely regarded as one of the top conferences on marketing and advertising law, with deep practical legal content. The conference was co-chaired by legal counsel from Coca-Cola, Wells Fargo, and Twitter, and speakers included representatives from Airbnb, American Express, Buzzfeed, Expedia, Facebook, Intel, Lyft, MasterCard, McDonalds, Procter & Gamble, VISA, AT&T, WPP, Mondelez, Sears and at least 30 other companies. Continue reading
More than 10,000 trademark attorneys from around the world celebrated the annual meeting of the International Trademark Association (INTA) this week by descending on Orlando like a flock of migrating birds.
It is quite literally the largest gathering of IP lawyers to be found anywhere, and for more than a century this meeting has served as a remarkable assemblage of thought leaders, talented practitioners, and representatives from the biggest and most important companies on the planet. After several days of meetings where we network and discuss the hottest topics in branding, we have all come away with deep thoughts about where the law and practice of trademarks is heading in the years to come.
This year, some key trends we identified from the front lines provide a glimpse of a new path for trademark law, brand managers and trademark lawyers: