Section 1
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enforcers of public interest, at the federal and state level
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Date created
Mar 1, 2020
Cards (102)
Section 1
(50 cards)
enforcers of public interest, at the federal and state level
government regulators
Post- consideration
some type of payment before the winner can claim the prize.
Carbolic Smoke Ball Case
There was a flu epidemic and no one knew how to prevent it. The makers of the "smoke ball" advertised an award of 100 Euros in the paper to any person who contracted the flu after using the ball 3X per day for two weeks. Courts used contract law to decide the case and the smoke ball company had to pay as promised.
Puffer has 4 characteristics:
1. It is general and vague 2. isn't measurable or verifiable 3. Presented as subjective 4. claim consumers are unlikely to rely on
preliminary injunction (equitable remedy)
prohibits the parties from doing an act until a pending ruling or outcome.
False comparative claims
Competitors often sue over comparative statements
3 part regulatory structure for false advertising
government regulators, competitors, consumers
A contest eliminates the 2nd factor (chance)
People pay to participate but there is no element of chance. Ex. a talent contest.
Consumer protection laws
UDAP statute - "Unfair& Deceptive Acts & Practices." 2"Little FTC" statutes- Private enforcement by consumer plaintiffs.
TRO (equitable remedy)
temporary restraining order
permanent injunction (equitable remedy)
with success at trial prohibits anymore acts
Some familiar disclaimers:
1. Dramatization 2. Shipping and handling not included 3. Subject to prior approval 4. No purchase necessary 5. If symptoms persist discontinue use and consult physician 6. Use only as directed 7. Void where prohibited by law 8. Offer good while supplies last 9. Offer valid at participating dealers only
Common Law Claims
Courts use contract law to fix a problem with false advertising law
The Federal Trade Commission (FTC)
can issue civil investigative demands to investigate potential deception or unfairness (consumer protectors)
Disparagement advertising
is permissible as long as it is truthful and not deceptive.
Lanham Act 6 factor inquiry: to determine if plaintiff prevails
1.false or misleading statement of fact 2.In interstate commerce (exchange between different states) 3.In connection with commercial advertising or promotion 4.deceive an appreciable # of consumers in the intended audience 5.That is material 6.That is likely to cause injury to the Plaintiff
Enforcement proceeding
respondent who violates an order may be sued in Federal District Court. Penalty is up to $11,000 per violation, along with injunctive relief and other equitable relief (either have to stop or do a specific behavior/act)
Hard to find disclaimers
evidence of an intent to deceive customers.
Statement of opinion
can't reasonably be seen as stating provable facts.
Fair use doctrine will apply to Obama poster
An artist stole AP's photo of Obama that was used during his campaign and turned it into his HOPE poster where he reaped the benefits of t shirts and stuff too. set up IRAQ for that (like cayley)
Comparative Parity (equivalence) Claims
claims that consumers think a product is "as good as" a competitor or that "nothing is more effective"
Falsity by necessary implication
courts may dispense with the requirement of extrinsic (outside and inadmissible) evidence if the misleadingness is obvious enough.
Direct action
When the FTC has reason to believe a person is violating or is about to violate a law they enforce. FTC can ask for an injunction (authoritative order) pending investigation.
Comparative preference claims
must be based on an adequate study or survey of the relevant market. Example: Ads claiming that VISA was the preferred lodging card found to be false because VISA's evidence showed only that consumers use VISA more NOT that they LIKE VISA more.
Puffery
talk that is so common that reasonable consumers are presumed to treat them as unverifiable, unquantifiable, subjective and unreliable. (Examples: best, finest, brightest, most delicious)
Federal court litigation
Two classes of cases: enforcement proceeding and direct action
National Advertising Division
NAD monitors advertising, accepts consumer complaints and engages in its own investigations, alternative to litigation. NAD can be cheaper and quicker than litigation in federal court.
The default rule
a disclaimer should be presented in the same space or time as the claim it modifies.
competitors
pursue their own interests against unfair competition
monetary and Equitable remedies
Both monetary and equitable remedies are available in Lanham Act cases
consumers
assert that they have been deceived or harmed by advertising. often in class actions (sue defendant as a group) based on state consumer protection law
State attorney generals can:
1. Enforce consumer protection laws on behalf of the public in most states. Cy Pres -when restitution (recompense for injury or loss) is given to relevant nonprofits when affected customers can't be readily identified
A sweepstakes eliminates the 3rd factor (pay to play)
It's a prize based on chance but people participate without payment.
recall and destruction of advertising material
in extraordinary cases
The four P's - elements of a clear and conspicuous disclosure
A. Prominence - big/loud enough for consumers to notice and read/hear B. Presentation - wording and format easy for consumers to understand C. Placement - place where consumers will look and/or conveyed in a way they will hear D. Proximity - Near the claim it qualifies
Consideration
can be any substantial expenditure of effort, such as taking a long survey or making multiple visits to a store. The more effort that is required the more likely it is to constitute consideration.
Lanham Act
Covers trademark and false advertising. Main law used by competitors.
Literal falsity
Literal false claims lead to liability w/o needing evidence of consumer deception unless no reasonable consumer would take them seriously.
Determining the nature of the claim
Claims that are not literally false but are potentially misleading, lead to liability (reliable by law) if there is evidence that they do deceive consumers
Corrective advertising
equitable remedy
An Illegal lottery has 3 components:
A. A prize - anything of tangible value B. Determined on the basis of chance C. paid to participate
Duration and repetition
Rule: disclaimers that are stated only once or twice while the underlying claim is repeated are ineffective. This rule is particularly applicable to lengthy ads such as websites or infomercials.
Dominant factor test: Courts ask:
A. is contest impossible to win without skill and can entrants make informed decisions B. does the average player have enough skill to participate. C. Whether skill determines the actual result of the game. D. are participants aware of the skill and criteria that will be used to determine the winner.
Statement of fact
a specific and measurable claim capable of being proven false or as an objective fact.
Article III standing
determinant over whether case is appropriate for access to federal court.
FTC detailed suggestions for effective disclaimers
Guidelines clearly written and prominent
the court considers these four factors: fair use of copyright under Section 107 of the Fair Use Doctrine?
1. Purpose and character of use 2. Nature of copyrighted work 3. Portion of work used (how much?) 4. Economic Effect
Comparative Superiority Claims
statements that consumers prefer a product or that it is more effective than its competitors. Can be proven false
analyze the 4 factors
1. Cayley's Copies used Bob's textbook for educational purposes. This would be for fair use by Cayley's copies. 2. Cayley's Copies published Bob's textbook, compiling up to 100 pages and roughly 30% of the book. The information is factual and is still available for purchase. Cayley's Copies, under these facts, would not be protected under the fair use act. 3. Cayley's Copies took a significant portion of Bob's book, therefore it's unprotected under the fair use doctrine. 4. The unlicensed use by Cayley's Copies does affect Bob. Cayley is selling the copies she used from Bob's book in her 200 stores throughout the country, therefore her use of Bob's book is not protected under the doctrine. Because Cayley's Copies' use of Bob's book isn't protected under the factors: nature of copyrighted work, portion of work used and economic effect, it was proclaimed that Cayley's Copies doesn't qualify for fair use under the Fair Use Doctrine.
Attorney's fees
in exceptional cases
Section 2
(50 cards)
To qualify for a patent, an invention must meet three conditions:
1. Utility: it muse be useful 2. Novelty: it must be new 3. Non-obvious: it cannot be a reworking of an existing invention in such a way that anyone else could duplicate it.
Distinctiveness
Required for a valid trademark, the more distinctive the mark, the greater its potential scope of protection
TRIPS - Trade Related aspects of Intellectual Property
contains specific protection clauses for computer software and other forms of electronic copyright.
three music licenses:
synchronization license, master use license, performance license
Equal opportunities rule: Sect. 315 of the Communications Act
whenever a legally qualified candidate for public office uses broadcast time, the station must afford equal opp. to all other candidates in the race.
Doctrine of work-made-for-hire: 2 exceptions under this doctrine: (employer owns work, not employee)
A. When the work is made during the regular course of employment B. When the work is contracted to be made
Infringement of Owner's rights:
Registration with the Copyright Office is required before a plaintiff can sue for copyright infringement Even if not registered the work should contain the copyright notice
The registration symbol (R) puts others on notice of a claim of ownership
If the trademark symbol is not registered the owner may use the TM or SM symbol. Registration of a trademark lasts 10 years but can be renewed indefinitely.
Copyright owners exclusive rights:
1. right to control reproduction 2. right to control public performance 3. right to control derivative works
Trademark rights can be lost through:
abandonment, dilution or infringement
Scenes a faire
used when due to the genre of the work, certain elements would naturally be expected: Like a training segment in a sports film establishing a similarity or even copying these elements is not enough to establish copyright infringement
copyright
protects original works of authorship fixed in a tangible medium of expression whether they are published or unpublished.
copyright owners have limited visual rights also known as moral rights
these rights apply only to original works of art, sculpture and other works of visual arts that are produced in 200 copies or fewer. Visual rights were added to bring our. These rights give artists limited rights to prevent their works from being destroyed or defaced.
Trademark
any word, name, slogan, design or symbol that is used in commerce to identify a particular product and distinguish it from others.
Copyright's general nondiscrimination principle:
protects all original creative works without judging their merits. Includes ads and illegal works such as obscene material.
Spectrum scarcity rationale
primary justification for broadcast regulation.
Master Use License
required to use a particular sound recording in a particular work
Blanket licenses
broadcast stations pay a yearly fee to the organization based on gross receipts of the business.
The FC considers three factors to determine whether a program qualifies as a bona fide news interview
1. is it regularly scheduled 2. does the broadcaster, not the candidate control the program 3. the broadcaster's decisions on format and participants are based on reasonable journalistic judgment.
Intellectual property:
A. legal name for copyrights, trademarks and patents B. Protection is provided for in the US Constitution C. Congress is specifically given the power in the Constitution
trademark
Trademark law governs the use of brand names and other words or symbol associated with a product or service.
Work for hire (3rd party work)
where copyright law considers the commissioning party, the advertiser, the owner of the work. For non-employees, a work for hire, must be in writing and fit within one of the nine categories in the Copyright Act.
Bleistein v. Donaldson Lithographing Co
a picture that is used for an ad can be the subject of a copyright
Trespass on private property
tort
Implied consent
when people routinely enter upon private property without specific authorization and without becoming liable for trespass. Ex. to shop, eat at a restaurant or knock on a front door.
The Copyright Act gives the copyright owner the exclusive right to:
a. reproduce the work b. prepare derivative works based on the work c. distribute copies or recordings of the work d. perform the work publicly e. display the work publicly
The doctrine of merger
applies to express an unprotectable idea; to keep the idea free for use, the expression can't be protected... used in courts when the plaintiff's copyright is "thin"
WIPO: World Intellectual Property Organization
An agency of the UN responsible for protecting and stimulating creativity around the world. Administers several multilateral treaties, the two main ones are: The Berne Convention and The Universal Copyright Convention.
Hierarchy of distinctiveness:
A. Fanciful marks: most distinctive - by themselves give no clue to the product like Exxon or Kodak B. Arbitrary marks: common words applied in a unique and arbitrary way - like Apple computers or Camel cigarettes C. Suggestive marks: terms that provide some clue to the products - like Orange Crush and Playboy Magazine. D. Descriptive terms: word that specifically describe characteristics of the product - like Surfing news for a newsletter about surfing E. Generic terms: common terms already in use - cannot be claimed as a trademark - like cat food or surfboard wax
How to avoid an illegal lottery
the advertiser must provide a 2nd entry method that doesn't require any consideration. This is typically called and Alternate Means of Entry. The chances of winning through the AMOE must be equal to the chances of winning through purchase.
Performance rights societies
handle licensing on behalf of music copyright owners.
Abandonment
use is discontinued with an intent not to resume
Zapple doctrine
extends the equal opportunities rule to the supporters of candidates. When a broadcaster sells or gives time to the supporters of one candidate, the supporters of the opponent are entitled to equal time on the air.
Bona fide
news coverage that is genuine and impartial and not used to advance the candidacy of a particular individual.
Willful infringement
when the defendant knew it was infringing the plaintiff's copyrights or recklessly disregarded that possibility.
Synchronization License
required to use a musical composition in a film or other new work
Unfair competition
tort primarily concerned with wrongful conduct by a commercial enterprise that results in business loss to another, ordinarily by the use of deceptive means to draw customers away from a competitor.
Section 512- Online Copyright Infringement Liability Limitation Act
1. Known informally as the Section 512 Safe Harbor 2. States that an ISP, including libraries and educational institutions shall not be liable for storing and transmitting infringing material, posted by others on the ISP's site 3. Immunity applies: as long as the ISP is "passive," the transmission or storage is an automatic process and the ISP did not specifically select the work for display 5. Notice and Take Down Process: In order to qualify for safe harbor, ISPs must: maintain an effective system by which copyright owners can notify the ISP of an alleged infringement and a process to promptly investigate allegations remove the unauthorized material if appropriate.
First sale doctrine
ownership of the copyright is distinct from ownership of the physical work itself. Once the owner of a copyright authorizes the release of lawfully made copies (ex. selling textbooks to the bookstore those copies may in turn be passed along to others by sale, rental or loan)
Dilution
mark is permitted to be used as a generic term; many people have infringed the trademark rights by using the mark resulting in a loss of distinctiveness and rights.
Infringement
when someone imitate a registered mark in connection with the sale or advertising without the owner's consent.
Unfair competition protects titles
copying a confusingly similar title may be enjoined (prohibited) under unfair competition law.
treaty or trade agreement
Legal mechanism which allows copyright owners to enforce their rights in a foreign country
A statute of frauds
requires copyrighted works to be in writing. Always get any copyright deals in writing
Performance License
required to publicly perform a composition, as by broadcasting a recording of a composition on the radio.
Copyright does not protect ideas themselves only the expression of ideas.
Protection of the expression of an idea or process begins as soon as the work is fixed in a tangible medium. Email, software and mobile apps are considered fixed for purposes of copyright.
WTO: World Trade Organization: Significant voice in international copyright standards and dispute resolution.
Significant voice in international copyright standards and dispute resolution. Administers TRIPS
Duration of the protection
copyright protection lasts for the life of the author plus 70 years. (For works created after January 1, 1978. Works created before 1923 are now in the public domain)
Express consent
when you are granted specific authorization to enter property
Consent: a complete defense to trespass
Section 3
(2 cards)