Law and Ethics Test 3

Further criticism

-"Too few diversity dollars on Madison Avenue: Progress Being Made, But Shoestring Budgets Spread Out Over Uncoordinated Efforts Hold Back Improvement" -2010 Civil rights lawyer Cyrus Mehri files charges against the ad industry with Equal Employment Opportunity Commission -Problems related to retaining and promoting minorities.

NYC Commission on Human Rights investigates agencies (2006)

-16 NYC communication agencies investigated -Number of minority employees well below other industries -16 agencies signed agreements with diversity commitments -By 2010, goals exceeded; 27% of hires were minorities in 2010

DTC Ad Guidelines: 1962 Kefauver-Harris Drug Amendment

-Advertised drugs must be proven safe and effective and ads must not be false or misleading -Ads must present fair balance of risks and benefits -Ads must contain facts material to the product's advertised uses -Print ads must contain a brief summary of side effects and contraindications -Broadcast ads must contain major statement (reduced brief summary)

Apple v. Microsoft v. Amazon

-Apple tried to trademark "app store" in 2008. -Dispute with Microsoft and Amazon is still ongoing to see if it is a generic term

Persuasion Knowledge Model (Friestad & Wright 1994)

-Assumes that consumers actively evaluate marketers' tactics and form their attitudes and behaviors accordingly based on: ----their perceptions of the message (Topic Knowledge) -----their perceptions of marketers' motivations (Persuasion Knowledge) -----their perceptions of the advertiser (Agent Knowledge)

Corporate social marketing enhances the bottom line

-Building brand equity and creating a differential advantage -Mitigating the effects of criticism -Increasing organizational identification among employees -Increasing organizational identification among consumers and other external stakeholders

Three Bodies of Law that Constrain Persuasive Communication (Third Party Rights)

1. Copyright law—to protect the creator's rights to the creative product 2. Trademark law—to project a company's identity and to keep consumers from being confused about company identity (e.g., logos, slogans) 3. Publicity rights—to protect an individual's right to his or her likeness

5. What constitutes fair use?

1. Descriptive fair use 2. Nominative fair use 3. Parodies

privacy torts(torts = injury)

1. Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs. 2. Public disclosure of embarrassing private facts about the plaintiff. 3. Publicity which places the plaintiff in a false light in the public eye. 4. Appropriation, for the defendant's advantage, of the plaintiff's name or likeness

In an average year, you will watch # hours of DTC advertising Approximately # prescription drugs brands account for #% of DTC advertising. Most common being

16 20 60% erectile dysfunction, arthritis and allergies

Lee National Denim Day

Allows employees to dress casually for a $5 donation

Amway

One by one campaign for children

Other identity qualifiers

Voice qualified as identity (Bet Midler for Ford) And personality attributes 1993 Samsung Vanna White And associations Motschenbacher v. R.J. Reynolds Tobacco Co. (racecar)

Disability ads

Walmart - committed to the American factory; downs syndrome man ThinkBeyondtheLabel (disability staffing)

In Class Examples of LGBT Marketing

Walmart, GE, Apple Tim Cook Honeymaid- love campaign response JC Penny - Ellen Degeneres, LGBT parents Oreo - rainbow oreo cookie Ray ban - men holding hands Ikea - 1st LGBT advertisement Barilla Pasta

In Class Example: Oz the Great and Powerful

Warner Bros. v. Disney in trademark lawsuit over Oz-related merchandise "Wizard of Azz" clothing line "If I Only Had a Brain" neuroscience books "Dorothy and Toto" and "Ruby Slipper" wines

ALLEN V. NATIONAL VIDEOONASSIS V. CHRISTIAN DIOR

What about the look-a-like's publicity rights? While a look-a-like business (Ron Smith's Celebrity Look Alikes) can market its clients for fun and profit in various areas, it cannot capitalize on the natural resemblance to a well known person for trade or advertising.

Trademark rights come from

no express constitutional authority U.S. Constitution, Article I, Section 8 "Congress' right to enact trademark legislation is derived from the Commerce Clause: "The Congress shall have the Power To regulate Commerce with foreign Nations, and among the several States and with the Indian Tribes...To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers."

Political Advertising is...

not regulated by the FTC political speech is protected

Pg. 59 to 72 in "Managing Conflict in a Diverse Workplace"

o Antoinette Mayer • Black woman software engineer at DigiSys o Discussion points: • Men/Women see flirting differently • Women are disproportionately victims of rape/assault • Men are socially conditioned to think of women not as equal colleagues • Women may protest gallant gestures as chauvinistic • Female behavior regarded as derivation from norm • Women see personal talk as a way to create a warm, intimate work environment o Nikki Bliss • Woman at NYC trading floor of brokerage firm o Discussion Points: • Securities industry is old-boys club; women not in managerial positions • Sexual harassment more focused on power—devalue women by calling attention to their sexuality • Important to be a part of prevailing company culture • 90% of cases go unreported—don't want backlash from co-workers • Women put in positioning keeping them farther from power • Employer should control workplace o Moses Wu • Senior manager at ETech • Wanted to get out of the lab • Complemented on management style o Julia "Mack" MacKenzie • Hot shot at JR consumer products company on the Re-Re team • Announced pregnant and no longer seen as one of the guys o Discussion Points: • Effective leadership often defined by male-biased traits • Those who are forceful in getting their points heard are often favored • Women must adapt because they are socialized differently than men • Skewed groups consist of dominants and tokens • A sex-blind rational person standard tends to be male-biased o Cassandra Barton • Design team leader at U.S. car manufacturer • Wants to take lead on design for blue collar women o Discussion Points: • Orgs often filter diversity by removing potentially disruptive elements • Dissidents to groupthink excluded • Highly cohesive groups have higher member morale and better communication • Tokenism: Minority voice first regarded with derision then confidence; influences majority

Two types of sexual harassment

• Quid pro quo harassment—proposed exchange of job benefits for sexual favors; "sleep with me or you are fired." • Hostile work environment harassment: unreasonably interferes with a person's job performance or creates an intimidating, hostile, or offensive work environment; must be severe or pervasive

Three types of ad messages

• Social issues linked with products (no animal testing) • Linked with corporations (Benetton We On Death Row) • Corporate donations to social issues (MAC Viva Glam)

Sheehan Chapter 13, "Advertising Prescription Drugs"

• TV ads in existence since 1997 • Print since 1980s • Older adults, 12% of the population, purchase 35% of prescription drugs • History resistance to DTC advertising - only legal in US and New Zealand • Physicians are gatekeepers to health care • Authority=FDA -1985: FDA decided to allow DTC ads -1988: First DTC ad: Rogaine -1999: FDA approves replacing brief summary with major statement -ADEQUATE PROVISION: providing alternative methods of acquiring information -commercials can air without FDA approval

Descriptive fair use

"A term or device which is descriptive of and used fairly and in good faith only to describe the goods or services of such party." Applicable only to descriptive trademarks Not applicable to fanciful, arbitrary, or suggestive trademarks

Celebrity identity

"If the celebrity's identity is commercially exploited, there has been an invasion of his right whether or not his 'name or likeness' is used." Disclaimer: "Celebrity double provided by Ron Smith's Celebrity Look-Alike's, Los Angeles, Calif." Celebrity's publicity rights trump the look-alike's publicity rights

Easy Spirit sues Naturalizer

"Looks like a pump, feels like a sneaker" --- U.S. Shoe Company (Easy Spirit, Macy's ad) "Think of it as a sneaker with no strings attached. . . And when we say it feels like a sneaker, we're not just stringing you along---Brown Group, Inc. (Naturalizer ad) Result: Naturalizer wins with "descriptive fair use" claim

Experts

"an individual, group, or institution possessing, as a result of experience, study, or training, knowledge of a particular subject, which knowledge is superior to that generally acquired by ordinary individuals"

1. Diversity issues in advertising/ communication companies

"blindingly white ranks" few female creative directors

Descriptive trademarks

"dress barn" "Sue Patrick dresses" "Austin dresses" "Feels like a sneaker" have to use them in commerce

Hierarchy of trademark distinctiveness for brand names

"inherently distinctive trademarks:" eligible for immediate trademark registration a. Fanciful trademarks Newly coined terms (e.g., Oreo, Kodak) b. Arbitrary trademarks dictionary terms given novel meaning (e.g., Apple, Inc.) c. Suggestive trademarks Dictionary meaning suggests something about the product (e.g., Greyhound Bus)

Change in Court's standard from "reasonable Person" to

"reasonable Woman"

Total giving to charitable organizations USA 2013

$335.17 billion - Individuals gave 72%

The Fifth Circuit has specifically identified three elements a plaintiff must prove to recover for the tort of misappropriation of name and likeness in Texas

(1) the defendant appropriated the plaintiff's name or likeness for the value associated with it, and not in an incidental manner or for a newsworthy purpose (2) the plaintiff can be identified from the publication (3) there was some advantage or benefit to the defendant.

Stats

*Half of the prescription drug requests that were prompted by an ad viewed by patients were clinically inappropriate (Murray et al., 2004) *80% of surveyed doctors believe that DTC advertising prompts patients to make unwarranted requests for treatments they may not need, and more than half of the time, the doctor prescribed the medication to accommodate the patient's request (Hollon, 2005; Montoya et al., 2008) *U.S. spending on prescription drugs has increased nearly six times over since the early 1990s - from $40.3 billion in 1990 to an estimated $234 billion in 2008 (Kaiser Family Foundation, 2010) *Only 12% of Americans are considered 'medically literate' because most consumers assume DTC ads are subject to government approval

In Controversies in Contemporary Advertising, read Chapter 16, "Online Advertising."

-Children's Online Privacy Protection Act (COPPA) of 1998 requires permission to collect info from children under 13 -UN wants its International Telecommunication Union (ITU) to govern security, taxation, and content filtering more closely -Cell penetration worldwide: 87% -native advertising circumvents banner blindness -Digital Millennium Copyright Act heightens consequences for violaters

Intended effects of DTC drug advertising

-Consumers learn about health choices -DTC reduces under-treatment of particular conditions (osteoporosis; creates healthier society) -DTC improves the quality of care -DTC raises public awareness/acceptance of health issues (mental health) + Develop trust in messages and medications

Nominative fair use

-Facilitates comparative advertising -Successful defense requirements: Plaintiff product is not readily identifiable without using trademark Defendant uses plaintiff's trademark only as reasonably necessary to identify the plaintiff's product. Defendant's usage does not imply the plaintiff's sponsorship or endorsement

Publicity rights summary

-Generally protect the use of people's names, images, voices, personality attributes, or associations from commercialization without consent -Protect celebrities and non-celebrities -Can extend after death -Include "look alikes" and "sound alikes" -Defenses of free speech, fair use, transformative

Unintended Effects of DTC drug advertising

-Increased compliance with treatment (positive- more mindful of health) + reminder effect +incomplete info (not a fair balance of info) +distrust among elderly +unnecessary/inappropriate prescriptions -Over-diagnosis & over-prescribing -Strains on the doctor/patient relationship -Public confusion/deception because of poor medical literacy -Increased costs -Diverting of funds from research & development -"Medicalization" of conditions common to aging for financial gain -May lead to an "overmedicated" society

Trademark law confusing because:

-It attempts to govern cognitive associations in consumers' heads, and it rarely incorporates scientific evidence -It lacks consensus about a single theoretical justification --Protects consumers from imposter brands --Rewards producers for investment in quality

Slogans as descriptive trademarks

-Must stand out from advertising copy -Must identify the product source -Must have proven secondary meaning -Infringement possible from other trademarks (such as names) not just other slogans. -Parodies, other than those that tarnish original brand, are probably more likely allowed

2 How publicity rights are implemented

-No federal publicity right -28 states have publicity rights statutes In other states, publicity rights provided by common law -California and New York play important roles -Some explicitly provide publicity rights beyond the person's death http://www.npr.org/2012/09/04/160551338/rights-of-publicity-extended-beyond-the-grave

Consequences of Invisible Populations

-Populations marginalized and devalued -Populations offended -Negative expectations created among others

Consider the following when implementing a socially responsible ad campaign

-Relevance -Clarity -Demonstrate caring -Asses commitment -Balance of cause/company -Provide solutions -Track results

Other sources of trademark protection

-State laws -Register trademarks (not required for protection) U.S. Patent and Trademark Office (USPTO) AND/OR E.U. Office of Harmonization in the Internal Market (OHIM)

Tips for trademarked slogans

-Use unusual wording (e.g., "Baby Dry" for diapers) -Adopt unusual context for descriptive words ("We Smile More" for Marriott) -Avoid laudatory praises (e.g., "Number One in Floor Care," "America's Freshest Ice Cream")

Intended effects of CSM

-consumer education/issue involvement increases -message attention/comprehension increases -increased transparency from companies -message credibility increases -improved corporate image -consumer guilt is assuaged

Unintended effects of CSM

-misleading consumers -increased feelings of futility/fear -issues are exploited -companies have more power over cause -greenwashing/pink washing

Textbook notes "Featuring people in ads"

-publicity rights originally part of privacy rights -right to publicity = intellectual property right -does NOT require showing likelihood of confusion -only apple to INDIVIDUALS -1960s: Prosser's four categories included "[a]ppropriation, for the defendant's advantage, of the plaintiff's name or likeness," which has evolved into the modern "publicity right." -no federal publicity right -publicity rights govern: merchandizing of a person OR depiction in ad copy -Ad copy covers NAME (Don's Henley), -consumer surveys rare

Three models of CSM

1 Business case model Socially responsible because customers care about it (Whole Foods and Toms) 2 Founder's vision model (TOMS one for one; coffee=clean water) 3 Syncretic steward model big company attempting to integrate throughout (GE Sustainability; Baxter International)

Corporate social marketing segments (Webb and Mohr 1998)

1 Consumer Skeptics (negatively disposed toward company social marketing) 2 Balancers (balance commitment to cause with traditional philanthropy) 3 Attribution oriented (consider company motive) 4 Socially Conscious (favorably disposed toward company social marketing)

Diversity methods

1 Cultural audit (shared agenda; set of goals supporting the org; insight into values, assumptions and norms for dealing with people and getting wok done; employee surveys and interviews) 2 Training 3 Recruiting/hiring initiatives (recruiting sites, pre reqs, internship/scholarship, interviewers, hiring goals) 4 Networks, discussion groups, task forces (network and support groups serving social, educational, self-development, advisory, and advocacy purposes; Advisory task forces study diversity and make recommendations; Discussion groups stress the individual) 5 Performance development/career management (e.g., mentoring programs) 6 Working conditions and benefit policies (e.g., flexible work schedules) 7 External programs (working with external groups to establish scholarship programs, technical assistance)

Texas Publicity Law

1 Defendant appropriated plaintiff's name or likeness for the value associated with it, and not in an incidental manner or for a newsworthy purpose 2 Plaintiff can be identified from the publication 3 There was some advantage or benefit to the defendant Lasts 50 years after death

Keep Advertising Honest - 3 indexes

1 Greenwashing Index Initiative of Enviromedia - users rate ads based on green commitment; give their own scores as well 2 Leanwashing Index Form of self regulation Shames companies who are being vague etc 3 Pinkwashing Index Companies pretend to donate to breast cancer awareness etc Darling of corporate social marketing Popular because it affects many different women - family history or not

FDA identifies 3 types of DTC ads

1 Help-seeking ads: contain information about a disease or medical condition without mentioning the drug's brand name (regulated by FTC!!) 2 Reminder Ads: include no reference to the drug's purpose, benefits, or risks, and that refer to the drug's brand name only (banned in US) 3 Product-claim ads: include both the drug's brand name + product info + contraindications

Sheryl Sandburg: mistakes women make

1 Not believing in themselves and sitting at the side of the room 2 Not making their partners real partners 3 Not to "leave before they leave"

4. How do you test for trademark infringement?

1 Plaintiff has a valid and protectable trademark 2 Plaintiff has priority over the defendant 3 Defendant used the trademark in commerce 4 The defendant's usage creates a likelihood of consumer confusion about the product's source, sponsorship, or affiliation.

Consumer testimonials

1 Portray opinion of consumers 2 Must be based on "typical" consumer experience 3 Must use actual consumers rather than actors 4 Must disclose if actors are used

Expert endorsements should

1 Refer to product qualities within the endorser's expertise 2 Be based on product characteristics that are available to typical consumers 3 Outliers would be misleading 4 Be based on use of the expert's knowledge 5 Accurately portray the expert's opinion

Celebrity endorsements should... FTC guidelines

1 Reflect the endorser's honest opinion 2 Make claims the advertisers can substantiate 3 Reveal biasing connections (e.g., financial interests) 4 Assume continued use of the product by endorser

Likelihood of Confusion

1 Strength of the plaintiff's mark (e.g., distinctiveness, secondary meaning) 2 Degree of similarity between the two marks 3 Proximity of the products or services 4 Likelihood that prior owner will "bridge the gap" into the newcomer's product or service line 5 Evidence of actual consumer confusion between the marks 6 Whether the defendant adopted the mark in good faith 7 Quality of the defendant's products or services 8 Sophistication of the parties' consumers

Greenwashing scoring criteria

1 The ad misleads with words 2 The ad misleads with visuals and or graphics 3 The ad makes a green claim that is seemingly vague or impossible to prove 4 The ad overstates or exaggerates how green the company/product/service actually is 5 The ad leaves out or masks important information, making the green claim sound better than it is

9 forms of corporate social marketing

1 Traditional philanthropy 2 Strategic philanthropy 3 Advertising with a social dimension 4 Cause marketing 5 Sponsorships 6 Traditional volunteering 7 Strategic volunteering 8 Social enterprises 9 Social alliances

The TARES Test: Five Principles for Ethical Persuasion

1 Truthfulness of the message 2 Authenticity of the persuader Integrity and personal virtue Sincerity and genuineness Loyalty and independence 4 Respect for the persuadee Rawls' Veil of Ignorance 5 Equity of the persuasive appeal 6 Social responsibility for the common good Read pp. 159-169 of "The TARES Test: Five Principles for Ethical Persuasion" by Sherry Baker and David Martinson.

"Privacy Harms" Possible privacy harms advertisers can contribute to

1 Unwanted intrusion 2 Out of pocket receiving costs 3 Overly personal targeting 4 Price/Service Discrimination 5 Unwanted gov disclosure 6 Unwanted third party disclosure

3. Organizational levers to improve diversity (3 types of diversity)

1 Workforce diversity (1) group and situational diversity (e.g., gender, race, ethnicity, religion, sexual orientation, age) (2) behavioral diversity (e.g., learning styles, communication styles) 2 Structural diversity interactions across functions, levels in the hierarchy, across divisions, across organizations 3 Business diversity expansion and segmentation of customer markets, diversification of products and services (e.g., globalization)

"This Bud's for You and 11 More Rosebuds" "This Beach is for You" (Myrtle Beach) "British Airways: The World's Favorite Airline" "Hair Color so Natural Only Her Hairdresser Knows for Sure"

1 Yes, parody (Anheuser-Busch v. Florists Association of Cleveland) denied-no chance of confusion 2 Yes, parody (Anheuser-Busch v. L.L. Wings, Inc.) 3 No, British Airways could not prove that the phrase without the company name identified the company 4 Yes, Clairol proved that the phrase without the company name identified the company

When you adopt a trademark—whether product name, logo, slogan, or other form of source identification...

1) make sure that it can be trademarked and 2) do a trademark search to make sure that no other company has already trademarked it. There are various specialized firms that provide this service

John Oliver Video Notes

70% of Americans take a prescription drug "Ask your doctor..." Drug companies know doctors hold real power in the industry Pharmaceutical rep's purpose is to educate doctors Most have no medical training Patient info at pharmacy sold to drug companies - can see how many prescriptions doctors signed for each pharmaceutical company Going off label- medicine not prescribed for intended use Describe doctors as thought leaders Not always clear that prescriptions are scripted Many doctors took payments for speeches they never gave (Novartis) New clause in affordable care act allows citizens to search federal web site for perks given to doctors for prescribing drugs

Pharm industry spending

9/10 spend more on marketing than R&D DTC=4 billion MKT to doctors=24 billion

Endorsements

Ad message that "consumers are likely to believe reflects the opinions, beliefs, findings, or an experience of a party other than the sponsor"

***Bait and Switch Advertising

Advertising an unusually low price, often on a brand that will draw consumers to the store, combined with personal selling tactics that discourage the purchase of the advertised item and encourage the purchase of a higher priced item.

First national cause related marketing campaign

American Express & Statue of Liberty Foundation Contributed money every time you used a card or got a new card $6 million ad campaign, $1.7 million donation AmEx Card Usage up 28%, New Cardholders up 45%

Comprehensiveness and consistency matter

Avon & Breast Cancer

3 What does identity mean

BACKGROUND ON HENLEY V. DILLARD'S A "henley" is a collarless polo shirt named after Henley-on-Thames, England, whose rowers wore the shirt as a uniform. Don Henley is a rock-and-roll musician who founded the band, The Eagles.

Sprinkles Cupcakes v. Pink Sprinkles

Both in CN: Pink sprinkles lost ability to use of name

How corporate social marketing builds brand equity

Building brand image Enhancing brand awareness Establishing brand credibility Evoking brand feelings and emotions Creating a sense of brand community Eliciting brand engagement

Crowdsourcing

CGC

Cause-related Marketing

Cause-related Marketing - the cooperative efforts of a for profit business and a non-profit organization for mutual benefit. Budget: $1.84 billion (IEG, 2014) 79% of American consumers would switch to a brand associated with a good cause (Cone, 2008). 44% of American consumers would pay more for a brand associated with a good cause (Nielsen, 2013).

TA'RON

Comparative advertising. TA'RON has copied name brand fragrances. Ad names the specific brands and fragrances that TA'RON has copied and links them with the TA'RON copycat fragrance.

Trademark Law examples today

Converse suing WalMart, Kmart, Sketchers Redskins lose trademark protection Haiyatt, etc popping up in China

1. Predecessor of CSM

Corporate IMAGE Advertising

Self-regulation

Easy-to-use, persistent, and effective Do Not Track system Privacy Trust certification

Objectives of Corporate social marketing

Economic (short term) Mixed—Economic (short-term and long-term) and Noneconomic Noneconomic (social goals) improving reputation and employee happiness

FTC files complaint against Sony for

Deceptive tweets regarding #gamechanger PlayStation Vita

2. Problematic issues stemming from a lack of understanding of diversity

Definition of sexual harassment: -"the critical issue. . .is whether members of one sex are exposed to disadvantageous terms or conditions of employment that members of the other sex are not exposed." ---->Supreme Court -Courts ask whether harassment "occurred because of sex"

What makes a trademark strong and protectable?

Distinctiveness

"Privacy Regulatory Institutions" 1074-1081

Federal Trade Commission= "the nation's leading privacy enforcement agency." Its enforcement actions have addressed practices offline, online, and in the mobile environment. The Fair Credit Reporting Act (FCRA) sets out rules for companies that use data to determine creditworthiness, insurance eligibility, suitability for employment, and to screen tenants. The U.S.-E.U. Safe Harbor Framework provides a way for businesses to transfer personal data from the EU to the U.S. FTC amended the Telemarketing Sales Rule (TSR) to create a national Do Not Call (DNC) Registry Reports: Privacy Report, Mobile Privacy Disclosures, Mobile Payments, Mobile Apps for Kids

4. Defenses to publicity rights

Freedom of speech Fair use Transformative (parody)

Gay Vague

Generally avoid explicit reference to one specific sexual orientation "Just friends" Ambiguous Eye of the beholder Not necessarily new Seeing a transition to more explicit ads ~ brands are starting to depict the real lives of men and women -Still plenty of backlash, media exposure to gay characters and storylines in non-ad content may be helping to pave the way for acceptance. -"Passed the tipping point, where there is more to gain than there is to lose for advertisers or brands" -"It's not your parents brand anymore. It's your brand and your kids' brand." Also, Schlitz Milwaukee beer, Cannon Towels,

Implications for environmental ads

Happy face works for donation and CRM Sad face works only for CRM Sad face works only for CRM by happy brands

Kitty's CSM Presentation

Happy to Help:Facial Expression and Consumer Philanthropy

Primary categories of ads where older people appear

Health Food Financial services

Trademark infringement examples Trade Dress infringement example

Hershey vs Mars Pizza Hut vs Chinese Hut Arbys vs CHURRASCO GAUCHO

Sorry State of Diversity in Advertising Is Also a Culture Problem

Hiring is only part of the problem. Also the failure to retain minority talent, which many believe is due to the lack of an encouraging environment Super Bowl 2010-- all commercials captained by a white creative director

All ads come down to

INFORMATION people want to know what a drug does

Sexual Orientation

LGBT often considered a dream market Spending power estimated at $800 Billion Aware of brands' social orientation Switching behavior Roughly 50% of LGBT aren't exposed to LGBT media of any kind. Why?

Most TV ads have

Major statement Alternative methods of acquiring info

CSM can create big wins for causes

Money In-kind donations Volunteers Advertising Publicity Know how (executives on loan)

University of Alabama v. Moore

Moore won bc of artistic vs commercial speech (painted football team on wall)

In European Union

Much harsher restrictions in than in the U.S. Comparative advertising is virtually banned

DTC Prescription Drug Advertising

PPT 1

TRADEMARK LAW: legal tool for protecting brand identity

PPT 2

Advertising & Sexual Orientation, Ability, and Age

PPT 3

Publicity

PPT 4

Diversity in the workplace

PPT 5

Corporate Social Marketing

PPT 6

PRIVACY CONCERNS

PPT 7

Parodies

Parodies may be defensible Parodies convey a different meaning from the original trademark because they involve satire and/or criticism Parodies that are not negative tend to fare better than parodies than negative parodies Non-negative parodies tend to benefit brand (ex: Got milk?) Milk board only threatened to sue PETA for Got Pus ?

NPR Story notes

Publicity rights beyond the grave differ by state Right of privacy up to 1950s - prevent name/image in advertising First issues with baseball players--card companies It is a property issue Copyright law always in play Indiana-most expansive rights of publicity (corp home of CMG worldwide -- own james dean, etc) Rights of the dead not protected against libel or slander

FTC's role

Research, reports, workshops, testifying to Congress Enforcement actions protecting consumer privacy and data security with a wide range of companies like Google, Facebook, Twitter, Microsoft, and MySpace Advocating with Congress for consumer protection laws Working with other countries to create global protection for consumers

Lanham act (1946) provides trademark rights

Right to trademark from "use in commerce" the bona fide use of a mark in the ordinary course of trade, and not merely to reserve a right in a mark; a mark shall be deemed to be in use in commerce— (1) it is displayed in any manner on the goods or their containers or the displays or on the tags or labels or on documents associated with the goods (2) on services when it is used or displayed in the sale or advertising of services

Age

Taco Bell - gateway breakfast Nest Thermostat grandpa

Dr. Pepper Snapple Group V. Dublin Dr. Pepper

The Dublin Dr Pepper name is gone now — it will be called Dublin Bottling Works, Inc., as part of the settlement.

A Call for More Blacks in Ad Agencies

The Madison Avenue project New York City Human Rights Commission reached settlements in 2006 with 12 major agencies that required them to meet quotas for hiring blacks

Counterfeit purses

The designer brand makers may not understand it, but phony bags are potentially a potent sampling tool.

Right to Publicity

The inherent right of every individual to control the commercial use of his or her identity

Ideas from case examples

Understand whether your mark can be registered as a trademark before investing in it as your brand (Pretzel Crisps) Find out if another company is using something similar to your mark before investing in it (Pink Sprinkles) Trademark law protects consumers from confusion and imposter brands (counterfeit brands, Dublin Dr. Pepper) Trademark law protects brands' identities and rewards companies' investments quality (counterfeit brands, Dublin Dr. Pepper) Understand the difference in artistic speech and commercial speech (U of Alabama vs Moore)

Potential Privacy Harms

Unwanted intrusion (online pop-up ads) Out-of-pocket receiving costs (text messages with a per message cost) Overly personal targeting (early pregnancy) Unwanted disclosures to government (forced disclosure of consumer data base) Unwanted disclosures to other parties (hackers, litigators)

Example of company response:Ogilvy's initiatives

Tied corporate diversity goals to performance reviews and pay Hired FutureWorks Consulting to do a cultural audit Participated in internship programs (e.g., AAF's Most Promising Minority Student Program) Recruited from historically black colleges Established Diversity Advisory Board Created Ogilvy Diversity Advisory Board Scholarships

Frito-Lay V. Princeton Vanguard (pretzel Crisps)

Trademark Trial and Appeal Board sided with snack giant Frito-Lay Inc. and ruled "Pretzel Crisps" = generic term The board said consumers consider the term to simply be a generic name for a type of food, not as a brand name.

Other Legal Protections for Celebrities

Trademark law If public identifies celebrity with a business enterprise Ex: Ralph Lauren Copyright If celebrity owns copyright to works or photos Creative products Unfair competition False descriptions, false statements, false representations

What can be protected

Trademarks: -Brand names -Logos -Colors -Sounds (NBC "chimes") -Slogans Trade Dress: -Unique product packaging -Product features and attributes

Examples

UT vs Tower Car Wash in Cedar Park UT won Louboutin vs Yves St. Laurent Yves won Colors can only be trademarked if they identify the source of a product. They cannot serve any other function. Red color ruled FUNCTIONAL (unlike Owen's pink insulation)

Does Collecting Personal Data for Online Behavioral AdvertisingRaise Ethical Issues?

Yes: Facebook, Google, Doritos Asylum Does Facial Recognition Technology Raise Ethical Issues? (1000+ FRT apps available) SNS Facebook Photo Tagging Google Plus 'Find My Face' Security Applications: Terrorist detection - International Airports German Federal Criminal Police Office (BKA) Pennsylvania Justice Network (JNET) Handheld i-phone facial recognition application in the U.S. In digital sinage: minority report, iFlavor Scenetrap: tracks proportion of genders at bar

Products tied to causes

Yoplait & Breast cancer Dove & Campaign for Real Beauty Google & Ebola Coke & Environmental Sustainability CVS & No smoking

Social marketing vs corporate social marketing

application of commercial marketing, advertising and public relations approaches by nonprofits/government entities to promote social causes/persuade people to engage in socially responsible behavior a company initiative in which time, know-how, and/or other resources of the company are applied to promoting a cause or persuading people to engage in socially responsible behavior; nonprofit may be a partner.

Ability integrated advertising

contains individual with physically notable disability

Can be registered ONLY after they have received "secondary meaning: (i.e., consumers believe the descriptive term refers to only one producer) Advertising plays a key role

d. Descriptive trademarks—dictionary words being used in a way that describes the trademark (Dress Barn, Smith's Dresses, Austin Dresses, Toys 'R' Us)

Can never be trademarked

e. Generic terms—words used for their dictionary meaning (e.g., "apple" used to describe the fruit) Frito-Lay V. Princeton Vanguard (pretzel Crisps)

In class example: Ad in Cohen v. Herbal Concepts

every individual has publicity rights (photo taken of naked butts in lake)