United States: Product Demonstrations Deliver Reward…and Risk (Advertising News And Analysis - May 9, 2013)

Last Updated: May 20 2013
Article by Jeffrey D. Knowles and Randall K. Miller


Product Demonstrations Deliver Reward...and Risk

Every marketer knows that nothing drives sales like showing the product in action. Product demonstrations are arguably among the most important selling points in direct response marketing. However, write Venable partners Jeffrey D. Knowles and Randall K. Miller in the May edition of the DRMA Voice, the persuasive power of these demonstrations also brings inherent risk because they have become favorite targets for competitor challenges and consumer class action plaintiffs' attorneys. Knowles and Miller draw on several recent self-regulatory challenges and consumer class actions to highlight risk mitigation best practices in development and substantiation of product demonstrations.

Click here to read the full text of the column by Knowles and Miller.

Sometimes the Claim is in the Eye of the Beholder

A public service message in Spain garnered media attention this week because the novel ad uses a lenticular image to deliver starkly different anti-child abuse messages to different audiences. The ad displays a child abuse awareness message to adults. However, anyone reading the ad who is under four and a half feet tall sees an image of a bruised child and the message "if somebody hurts you, phone us and we'll help you" alongside the foundation's phone number. The ad highlights the fact that two audiences can "see" advertising claims differently, write Venable partners Amy Ralph Mudge and Randal M. Shaheen in a recent post to Venable's advertising law blog, www.allaboutadvertisinglaw.com.

Advertising claims are usually interpreted with regard to the "reasonable consumer." However, there are some times when claims that might mislead a reasonable consumer may not be misleading because they are intended for an audience with special knowledge. It is more often the case, Mudge and Shaheen write, that audience targeting can be problematic because of the difficulty of segregating audiences and prescriptions on advertising to certain groups.

Although some technologies provide novel ways to segregate audiences, a thorny question is at what point does the technology work so imprecisely that a company can no longer claim it "targets" certain groups. Questions like this, they write, will likely keep lawyers and regulators busy for the foreseeable future.

Click here to read the full text of the post on Venable's advertising law blog, www.allaboutadvertisinglaw.com.

Click here to watch a YouTube video about the Spanish ad.

Viacom v. YouTube Decision Maintains DMCA Safe Harbor for Video Site

On April 18, 2013, the U.S. District Court for the Southern District of New York again held that internet video site YouTube is subject to the safe harbor provisions of the Digital Millennium Copyright Act (DCMA) as an internet service provider despite alleged general knowledge of extensive copyright infringement, write Venable attorneys Meaghan Hemmings Kent and Martin L. Saad in the April edition of Venable's IP Buzz newsletter.

The case was initiated in 2007 by Viacom and others against YouTube for the alleged hosting of copyright infringing materials. In 2010, the District Court determined on summary judgment that YouTube fell within the safe harbor of the DMCA. The decision was later vacated by the Second Circuit and remanded. The Second Circuit focused on whether there was knowledge of "specific infringements" rather than generalized knowledge of infringement. The Circuit Court asked the District Court to address four specific issues; on remand District Court held for YouTube on all four.

The judge's opinion explained that the DMCA safe harbor provision was enacted because internet service providers provide a useful function, but that the volume of works placed through their services would mean that they could easily "ignorantly" provide access to infringing material. Because of this, he wrote, the DMCA safe harbor provision places the burden on the copyright owner to identify and notify the service provider of the specific infringing works. While this decision is a win for service providers, write Hemmings Kent and Saad, it will be a frustrating loss for copyright owners. They note that Viacom has already indicated it intends to appeal this decision.

Click here to read the full text of the client alert.

TCPA Claims Still Unavailable in New York

On May 1, 2013, a judge in the U.S. District Court for the Eastern District of New York denied a motion to reconsider his earlier decision dismissing claims arising under the Telephone Consumer Protection Act (TCPA) and accompanying rules and regulations for lack of subject matter jurisdiction, write Venable partners Edward P. Boyle and Michael C. Hartmere in a recent post to Venable's advertising law blog, www.allaboutadvertisinglaw.com.

In Bank v. Independence Energy Grp. LLC, the court had dismissed the TCPA claims in reliance on a Second Circuit precedent, Holster III v. Gatco, Inc., which interpreted the TCPA to bar claims in New York federal court because New York State's civil procedure rules do not permit statutory class actions.

In denying the motion to reconsider, Boyle and Hartmere write, the court addressed an issue not covered in its prior decision and held that Holster III decision was still valid despite the Supreme Court's subsequent decision in Mims v. Arrow Financial Services, LLC, which held that federal and state courts have concurrent jurisdiction over private actions brought under the TCPA. The plaintiff in Bank has stated publicly that he will appeal the decision to the Second Circuit.

Click here to read the full text of the blog post, which explores the Holster III and Mims decisions in greater detail.

Click here to read Venable's client alert about the initial Bank decision dismissing the TCPA claims.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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