Interactive Counsel

Arent Fox's interactive media law blog - latest news and trends in advertising, data security & privacy, and IP.

Interactive Counsel
Advertising, Promotions, Sweepstakes & Contests
Mary Kay Takes Aim at ‘Fraudulent Couponing Scheme’

The international skin care and cosmetics company Mary Kay is hitting back against what it is calling a “fraudulent couponing scheme” operated by the online digital coupon marketplace, RetailMeNot. Earlier this month, Mary Kay filed a federal lawsuit against RetailMeNot (RMN) alleging that RMN’s online coupon business violates federal trademark and advertising laws, as well as federal and state unfair competition laws.

Background

At the heart of Mary Kay’s complaint is the company’s direct-sales business model. Since it was founded in 1963, the company has sold its products exclusively through a network of independent contractors known as Independent Beauty Consultants (IBCs), who then sell the products directly to consumers through direct sales channels such as house parties and personal websites. IBCs are not permitted to sell products through retail channels or brick and mortar establishments, and Mary Kay does not sell products directly to consumers.

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Advertising, Publicity Rights
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A Monster Trade Dress Win for Monster Truck Company

There was good news for those companies that have products with unique designs at the US Patent and Trademark Office (PTO). The PTO found that the design of a monster truck could be protected and registered as trade dress for the “services” offered by the owner.

Frankish Enterprises Ltd. (Frankish) is the proprietor of monster truck entertainment services offered in connection with its JURASSIC ATTACK monster truck (shown right).

Believing the design of its JURASSIC ATTACK truck was unique and functioned as a trademark, Frankish filed an application for the mark covering “entertainment services, namely, performing and competing in motor sports events in the nature of monster truck exhibitions.”

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Advertising, E-Commerce, Mobile Marketing, Social Media
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Dating App Stops Attempt at Native Advertising

What’s the News?

Tinder, a mobile dating application, recently removed an advertising campaign being conducted on the app by Gap, Inc. (Gap). Tinder claimed that the advertisements violated its terms of service, which provide that the app is for “personal use only.” This should serve as a reminder to businesses to read and ensure compliance with the relevant terms of service before engaging in advertising on social media platforms.

Background

Based on the variety of formats, different social media platforms allow for different types of advertising. Some platforms, such as Facebook, provide banner space that advertisers can purchase to engage in traditional advertising. Other platforms do not sell ad space, meaning that businesses must resort to what is known as “native advertising.” Native advertising utilizes the normal features of a social media platform to promote content. This is how Gap attempted to advertise on Tinder.

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Advertising
BBB Adds Negative Option Guidance to Advertising Code

For the first time, the Better Business Bureau (BBB) has added guidance on negative option billing plans to its “Code of Advertising.” The Code governs advertising disputes for the 112 BBB chapters in the US and Canada. Although the BBB is best known for disputes through the National Advertising Division (NAD), the BBB’s local chapters last year dealt with more than 10,000 advertising disputes and the BBB reports that complaints about negative option plans alone number in the thousands annually.

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Advertising
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Arent Fox to Present on Advertising and Data Collection at ANA's Annual Conference

On April 1, 2015, Sarah Bruno and Matthew Mills of Arent Fox will present “Marketing with New Technology: The Intersection of Advertising and Data Collection” during the Association of National Advertisers’ Advertising Law & Public Policy Conference. As with past conferences, attendees will hear from important regulators on key issues that are shaping the legal and political climate for advertising and marketing.

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Mobile Marketing
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EU Says ‘Freemiums’ Can No Longer be Called ‘Free’

What’s the News?

Apple Inc. and other leading technology companies have reached an agreement with the European Union (EU) regarding their use of the word “free” in relation to mobile applications. The EU alleged that the companies were labeling apps as “free” in contexts that were likely to mislead consumers. By entering into the agreement, the companies each avoided the possibility of $5.65 million in fines.

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COPPA & GLB
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FTC Clarifies Impact of COPPA in the Educational Setting

What’s the News?

The Federal Trade Commission (FTC) recently clarified that its jurisdiction under the Children’s Online Privacy Protection Act (COPPA) does not extend to information collected by state governments or most nonprofits in connection with online educational testing. The FTC reiterated that the primary goal of COPPA is to protect children’s privacy with respect to the online collection of personal information by commercial entities.

Background

Under COPPA, websites and online services that are “directed” to children under the age of 13, as well as general interest websites that have actual knowledge that they are collecting personal information from children under the age of 13, must provide notice of their data collection practices and obtain verifiable parental consent before collecting, using, or disclosing the personal information of children.

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E-Commerce, Privacy & Security
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FDRA Holds Briefing to Discuss Latest Cybersecurity Trends

Last week, the Footwear Distributers and Retailers of America (FDRA) hosted a briefing on cybersecurity trends in the retail industry. In light of the high-profile data breaches in 2014 — including many at the retail level — the briefing aimed to inform the footwear industry on the nature of today’s cyber threats and the way to most effectively secure private information.

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Advertising, E-Commerce
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FTC Settles with Maker of ‘Brain Training’ Games for Children

What’s the News?

Focus Education, LLC, a leading provider in the growing market for cognitive improvement products, recently settled with the Federal Trade Commission (FTC) over charges that it was misleading consumers through the use of deceptive advertising tactics. Specifically, the FTC took issue with claims that the company’s primary product, the ifocus System, would bring about permanent cognitive improvement in children.

The ifocus System and the FTC Settlement

The centerpiece of Focus Education’s ifocus System is “Jungle Rangers,” an interactive computer game for children. The game features embedded cognitive tasks that are designed to stimulate neural pathways for focus, attention, and concentration. Such games are part of a robust and growing industry: in 2013, Americans spent $1.3 million on “brain games” purported to enhance cognitive functioning.

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E-Commerce, Mobile Marketing, Privacy & Security, Social Media
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The FTC Releases Report on the Internet of Things

The Federal Trade Commission (FTC) released a report this week examining the privacy and security implications of the so-called “Internet of Things.” The Internet of Things (IoT) refers to the ability of everyday objects to connect to the Internet and to send and receive data. As the number of connected devices has surged in recent years, the FTC has signaled a strong interest in the IoT and repeatedly warned businesses to be mindful of consumer privacy and security when developing new products.

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ABOUT ARENT FOX LLP

Arent Fox LLP, founded in 1942, is internationally recognized in core practice areas where business and government intersect. With more than 350 lawyers, the firm provides strategic legal counsel and multidisciplinary solutions to clients that range from Fortune 500 corporations to trade associations. The firm has offices in Los Angeles, New York, San Francisco, and Washington, DC.