Welcome to Scribd, the world's digital library. Read, publish, and share books and documents. See more
Buy Now $10.00
Standard view
Full view
of .
Save to My Library
Look up keyword or section
Like this
82Activity

Table Of Contents

1. Definitions
Advertising vs. Marketing vs. Sales
Advertising Can Have Different Purposes
Payment Methods for Advertising
2. Why Advertise?
A. Advertising and Profit Maximization
B. A Normative Assessment of Advertising
C. Advertising and Persuasion
A Preliminary Note on Implicature
Older Critiques of Advertising
Harms of False Advertising
(Qualified) Defenses of Advertising
D. Further on Psychological Approaches to Advertising
Advertising’s Powerful Effects
The Example of Price
Images and Words
“Neuromarketing”
3. Advertising and Free Speech
NOTES AND QUESTIONS
4. Distinguishing Advertising from Editorial Content
A. Corporate Speech and Public Discourse
B. Advertising Masquerading as Editorial Content
1. The Federal Trade Commission (FTC)
A. Statutory Background
Unfairness
Deceptiveness
Structure
B. Enforcement of FTC Advertising Regulations
Administrative Trials
Federal Court Litigation
Non-litigation Activity
2. Competitors: The Lanham Act and Self-Regulation
A. The Lanham Act
History
Present Form
B. BBB/ASRC/NAD
The Relationship between NAD and the Courts
A. Common-law Claims
I. Contract Distinguished
II. Ads as Offers Today
III. Common-law Fraud or Deceit
B. Consumer Protection Laws
I. Overview
II. State Attorneys General
III. Consumer Lawsuits
Introduction
Case Study: All Offers Accepted?
IV. Class Actions
4. Comparing the Types of Regulation
Practice Problem: Fyord
1. Facts and Non-facts: Puffery and Related Doctrines
Fact vs. Opinion
2. Puffery
A. Merely Puff?
B. Opinion as Puffery?
C. What If Puffery Works?
D. Are Incomprehensible Claims Puffery?
E. Humor and Parody
3. Falsity
A. Advertising Claims in the Context of the Ad
B. Literally False Claims, also Known as Explicitly False Claims
C. Constraining the Boundaries of Literal Falsity?
D. Substantiation
I. FTC Substantiation Policy
II. Endorsements
4. False Establishment Claims
The Placebo Effect
5. False Demonstrations and Dramatizations
6. False Implied Claims
7. The Target Consumer
If the Ad Is Misleading, Who Is Being (Mis)led?
The Credulous Consumer: The Consumer Who Believes Too Readily
The Reasonable Consumer
The Sophisticated Consumer
A “Not Insubstantial Number” of Consumers
8. Materiality
B. Materiality in the Face of Consumer Reaction Evidence
C. Endorsements and Other Stamps of Approval
D. The Scope of Materiality/Bait and Switch
E. Other Factors to Consider in Assessing Materiality
I. Materiality and the FTC
II. Materiality in Class-Action Lawsuits
F. A Final Note on the Relevance of Materiality: What Really Sells Products?
1. Omissions as False Claims
The Lanham Act and the NAD
Country of Origin Disclosures
The FTC and Omissions
State Laws
2. Disclosures/Disclaimers and Their Effectiveness
A. Guidelines for Effective Disclaimers
Proximity and Placement
B. Disclaimers Are Not Always Sufficient
Disclaimers, Literal Falsity and Ambiguity
The Real Solution: Rewriting the Main Claim
C. Online Disclosures
D. Duration and Repetition
E. Understandability
3. Mandatory Disclosures and Their (Dis)contents
A. Legislative Definition of Terms?
B. Endorsements and Sponsored Content: Materiality vs. Information Overload
C. More General Criticisms of Disclosure and Disclosure Creep
D. A Final Case Study: Frankenfood?
1. False Comparative Claims
A. Review: Complexity and Counterclaims in Comparative Advertising Cases
Was Using Averages False?
Graphs as Establishment Claims
Were the Graphs Properly Constructed?
Counterclaim: Coppertone’s Comparative Establishment Ad
Technical Deficiencies or False Advertising?
B. Review Problem: Steam Cleaners
2. Determining the Nature of the Claim
3. Implicit Falsity and Falsity by Necessary Implication
4. Surveys
A. Survey Evidence
B. Reliable Survey Design
I. The Surveyed Population
II. Sampling Techniques
Questions
Controls
Presentation
IV. Data Reporting and Analysis
V. Objectivity
C. Admitting Surveys as Evidence
Internet Surveys
How Carefully Should Courts Parse Survey Language?
Surveys to Disprove Misleadingness
D. Distrust of Surveys and Alternatives
Mead Johnson & Co. v. Abbott Laboratories, 201 F.3d 883 (7th Cir. 2000)
Mead Johnson & Co. v. Abbott Laboratories, 209 F.3d 1032 (7th Cir. 2000)
5. Standing Under the Lanham Act
A. Commercial Advertising or Promotion
B. First Rule: No Consumer Standing
C. Second Rule: Increasing Barriers for Competitors
6. Standing Under State Laws
1. Defamation and Disparagement
Convergence in the Torts
The Line between Defamation and Product Disparagement
2. Commercial Speech in An Age of Convergence
3. Why All These Negative Ads?: Public Policy and Comparative Advertising
Effect of the FTC Statement
4. A Final Business Tort: Tortious Interference
1. Class Actions: Special Considerations
Special Rules for California
Class-action Waivers and the Uncertain Future of Class Actions
2. Injunctive Relief
A. Standard for a TRO or Preliminary Injunction
I. Irreparable Harm
II. Likelihood of Success on the Merits
III. Balancing the Hardships
IV. Public Interest
B. Types of Injunctive Relief
I. Prohibition on Further Dissemination
II. Fencing-in and Exclusion Orders
III. Corrective Advertising/Consumer Education by the Defendant
IV. Product Recall/Destruction
C. Permanent Injunctive Relief
D. Defenses to Injunctive Relief
I. Delay/Laches
III. Mootness
IV. Unclean Hands
Balancing Unclean Hands with the Public Interest
3. Money Awards
A. Monetary Remedies in FTC Actions
B. Monetary Remedies in Private Actions
I. Defendant’s Profits
II. Plaintiff’s Damages
III. Costs
IV. Punitive Damages
V. Attorneys’ Fees
VI. Class-action Settlements
4. Criminal Liability
1. What is Protectable?
2. Who Owns Ad Copy?
3. Using Other Material in Ads
A. Risks Associated with Depicting Everyday Life in Ads
B. Characters and Parody
C. Defendants Don’t Always Lose! A Successful Parody
4. Adding Ads to Copyrighted Works
1. Brief Overview of Trademark Law
Acquiring Trademark Rights
2. Trademark Infringement
B. Use in Commerce
1-800 Phone Numbers
Keyword Advertising Triggering
Billboards
Descriptive Fair Use
C. Comparative Advertising and Nominative Use
3. Trademark Dilution
4. Ambush Marketing
5. Online Advertising Issues
A. Domain Names
I. Trademark Infringement
II. Trademark Dilution
III. Anti-Cybersquatting Consumer Protection Act (ACPA)
IV. Uniform Dispute Resolution Policy (UDRP)
V. State Domain Name Laws
VI. Domain Name Litigation
B. Metatags
C. Keyword Advertising
1. Trade Secrets
A. An Overview of Trade Secret Law
B. Future Marketing Plans as a Trade Secret
C. Customer Lists as a Trade Secret
2. Patents
Overview of Patents
Patents and the Advertising Industry
3. Idea Submissions
4. Antitrust
In the Matter of Polygram Holding, Inc., FTC Docket #9298 (2003)
1. Overview of Publicity Rights
2. Publicity Rights and Ad Copy
A. A Person’s Name
B. A Person’s Voice
C. A Person’s Image
D. Evoking a Persona
3. Endorsements and Testimonials
Fabricated Endorsements and the David Manning Incident
Truthful Endorsements and Consumers Union v. Regina
1. The Ambiguity of “Privacy”
A. Prosser’s Privacy Torts
Intrusion into Seclusion
Public Disclosure of Private Facts
False Light
B. Westin’s Privacy Categories
2. Privacy and Harms
3. Sourcing Data
A. Why Data Matters
B. Collecting Data from Users
I. Statutory Restrictions
II. Voluntary Restrictions
III. Acquiring Data from Third-Party Databases
IV. Acquiring Data from Public Sources
V. Scraping
A Legal Battle over Scraping
4. Ad Targeting
Regulation of Behavioral Advertising
Practice Problem: Asylum626
5. Ad Delivery
1. Coupons
2. Sweepstakes and Contests
A. How Can a Contest or Sweepstakes Avoid Being an Illegal Lottery?
Element One: Prize
Element Two: Chance
Element Three: Consideration
B. Alternate Means of Entry
C. Other Rules About Sweepstakes and Contests
D. Direct Mail Advertising of Sweepstakes and Contests
E. Externalities of Contests
F. Sweepstakes, Contests and Intermediaries
1. Advertising Agencies
2. Affiliates
3. Publishers
A. Publisher Liability for Advertisements (Offline)
B. Publisher Liability for Advertisements (Online)
C. Publisher “Must Carry” Obligations
4. Measuring Advertising Activity and Fraud
1. The Food and Drug Administration (FDA)
A. Prescription Drugs
Enforcement
B. Food Advertising
The EU’s Approach
C. Nutritional Supplement Advertising
D. The FDCA’s Interaction with Consumer Protection/Unfair Competition Laws
E. The First Amendment
2. Green Marketing
3. “Organic” Claims: From the Wild West to the Walled Garden?
P. 1
Advertising and Marketing Law Casebook July 2012 by Tushnet and Goldman

Advertising and Marketing Law Casebook July 2012 by Tushnet and Goldman

Ratings: (0)|Views: 49,240|Likes:
Published by Eric Goldman
This is a brand-new casebook by Professors Rebecca Tushnet and Eric Goldman. It is the first-ever casebook focused on Advertising Law courses in the law school curriculum. The book PDF runs 870 pages in 16 chapters and is DRM-free. Total download size: ~40MB. See a complete sample chapter for free at http://ssrn.com/abstract=2105713 (Chapter 12: Featuring People in Ads). For more background on this project, see http://blog.ericgoldman.org/archives/2012/07/announcing_a_ne.htm.

In order to complete the transaction, you will need to log into Scribd. They will try to get you to connect via Facebook, but if you don't want to do that or don't have a Facebook account, then you should be able to navigate around that. When you're done paying, go back to the document and it will then be available for download.

If you have any questions or problems, contact egoldman@gmail.com. If you are a potential professor of this course, email us for a complimentary copy.

We have provided a letter authorizing printing at copyshops if needed. See http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1102&context=historical
This is a brand-new casebook by Professors Rebecca Tushnet and Eric Goldman. It is the first-ever casebook focused on Advertising Law courses in the law school curriculum. The book PDF runs 870 pages in 16 chapters and is DRM-free. Total download size: ~40MB. See a complete sample chapter for free at http://ssrn.com/abstract=2105713 (Chapter 12: Featuring People in Ads). For more background on this project, see http://blog.ericgoldman.org/archives/2012/07/announcing_a_ne.htm.

In order to complete the transaction, you will need to log into Scribd. They will try to get you to connect via Facebook, but if you don't want to do that or don't have a Facebook account, then you should be able to navigate around that. When you're done paying, go back to the document and it will then be available for download.

If you have any questions or problems, contact egoldman@gmail.com. If you are a potential professor of this course, email us for a complimentary copy.

We have provided a letter authorizing printing at copyshops if needed. See http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1102&context=historical

More info:

Published by: Eric Goldman on Jul 12, 2012
Copyright:Traditional Copyright: All rights reserved
List Price: $10.00 Buy Now

Availability:

Read on Scribd mobile: iPhone, iPad and Android.
See more
See less

03/17/2014

$10.00

USD

pdf

You're Reading a Free Preview
Pages 22 to 870 are not shown in this preview.

Activity (82)

You've already reviewed this. Edit your review.
cic347_908436264 added this note
Main law used in competitor claims is the Lanham Act (trademark and false advertising)
cic347_908436264 added this note
common reasons for pursuing misleading adv.
cic347_908436264 added this note
Pillars of Truth
cic347_908436264 added this note
What does "unfair" mean in FTC?
cic347_908436264 added this note
Wheeler-Lea Ammendment
cic347_908436264 added this note
What is the FTC?
cic347_908436264 added this note
note
cic347_908436264 added this note
If props are not used to prove a product claim, there is no problem.
cic347_908436264 added this note
Covergirl and over-dramatized lashes
cic347_908436264 added this note
Volvo and Monster trucks TV dramatization

You're Reading a Free Preview

Download
/*********** DO NOT ALTER ANYTHING BELOW THIS LINE ! ************/ var s_code=s.t();if(s_code)document.write(s_code)//-->