The Law of Advertising, Marketing and Promotions

The Law of Advertising, Marketing and Promotions

by David Bernstein

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“This is a great resource for anyone working in advertising law, and will also save a ton in Westlaw charges if you hand it over to associates just learning the ropes.” – Rebecca Tushnet's 43(B)log“At last: a desk manual that works for everybody... An extraordinarily well organized and itemized work that explains the law in plain English and provides the current views of circuit courts where available.” – Advertising Law Alert Advertising has become ubiquitous in daily life, especially since the explosion of new media. The Law of Advertising, Marketing and Promotions explains the complex and evolving legislative, regulatory, courtbased, and selfregulatory rules governing advertising content and practices. When is an omission a false claim under the Lanham Act? When can you use a competitor's name in online keyword advertising? This timely and indispensable treatise covers everything from the procedures for challenging false advertising to the questions raised by the latest online techniques. It provides legal analysis as well as practical tools, such as checklists for claim substantiation, disclosure and disclaimers, and sweepstakes. Topics covered include: statutes, regulations, and case law; industry rules such as television network and Children's Advertising Review Unit (CARU) guidelines; false advertising claims and defenses; consumer surveys; intellectual property infringement, fair use and trademark dilution; direct marketing, sweepstakes, and contests; keywords, popups and other online ads; rules for special products and industries; pros and cons of litigation in various fora; remedies; and more. This complete guide to legal risk will help advertisers and their counsel make sense of overlapping legal structures, anticipate problems, and handle the issues raised by all types of advertising.

Product Details

ISBN-13: 9781588523259
Publisher: Law Journal Press
Publication date: 04/28/2019
Sold by: Barnes & Noble
Format: NOOK Book
Pages: 788
Sales rank: 945,081
File size: 2 MB

About the Author

David H. Bernstein is a litigation partner in the New York office of Debevoise&Plimpton LLP. He has handled a wide range of high profile intellectual property matters involving false advertising, trademark and trade dress infringement and dilution, Internet and domain name law, anti-counterfeiting, copyright infringement, right of publicity, misappropriation, trade secret and patent infringement matters. Mr. Bernstein is recognized as a leading intellectual property practitioner by such publications as the IFLR Benchmark Litigation Guide, Chambers USA and Legal 500 US. Mr. Bernstein is also an adjunct professor at George Washington University Law School where he teaches Advanced Trademark Law. He was formerly Counsel to the International Trademark Association (INTA) and currently chairs INT's U.S. Amicus Brief Subcommittee. He has written and lectured widely on IP law issues. Mr. Bernstein received his A.B. magna cum laude from PrincetonUniversity's Woodrow Wilson School of Public and International Affairs in 1985, his M.Sc. from the London School of Economics and Political Science in 1986, and his J.D. from Yale Law School in 1989. He served as Law Clerk to the Honorable Robert E. Keeton, US District Court for the District of Massachusetts, from 1989-1990.

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Law of Advertising, Marketing, and Promotions 5 out of 5 based on 0 ratings. 1 reviews.
rivkat on LibraryThing More than 1 year ago
Disclosure: I was an associate at Debevoise & Plimpton and I worked on an early draft of the treatise around 2001. According to my best recollection, little of my work survives, as one might expect.Even with my obvious bias, I think this is a great resource for anyone working in advertising law, and will also save a ton in Westlaw charges if you hand it over to associates just learning the ropes. (Before I started clerking, one of the good pieces of advice I received was to read through the relevant treatise on habeas, which made it much easier to handle many of the cases I saw. I¿m not suggesting that anybody but me should sit down and read this treatise through, but pointing a lawyer to the relevant chapter/s could be a big timesaver.)The volume begins with a short overview of the relevant law (with the key sources of regulation being the FTC, the NAD, state AGs, consumer class actions, and competitor lawsuits under the Lanham Act), with summaries that are expanded on in later chapters. The authors tend to focus on competitor suits/NAD claims and add information about other sources of regulation from there. In many cases, they offer checklists or guides for particular issues (e.g., required disclosures for business opportunities, prescription drugs, sweepstakes, and so on). Chapters cover deception generally; substantiation; disclosures and disclaimers; surveys; intellectual property rights (at a gallop, naturally); contests and sweepstakes; direct marketing; online advertising; special advertising issues (drugs, cosmetics, and food; professional advertising; alcohol, tobacco, and firearms; financial services and securities; gambling, political ads; and ads to children); procedure; and remedies.The treatise pays relatively little attention to the FTC¿s revised endorsement guidelines, despite the amount of consternation the guidelines caused when announced. This is some indication to me that the guidelines aren¿t actually much more than updating standard principles. The treatise spends more time on the FTC¿s contemporaneous changes/clarifications with respect to substantiation, which are probably more important to the average advertiser. However, this focus also means that some issues involved in affiliate/multi-intermediary campaigns go by very quickly, particularly the ultimate advertiser¿s liability for acts of others further down the chain (and some more attention to the endorsement issues for things like gifts to bloggers would have been welcome).The survey chapter, like the other chapters, is quite detailed and notes instances where current research knowledge is ahead of the precedents, for example, in terms of the pervasive mismatch between stated purchase intentions and actual behavior, with complicated consequences for defining a relevant survey universe. The treatise suggests that a conservative approach¿considering only people who have purchased the product/service at issue and also say they intend to do so again¿might be one response to that, but cautions that courts might not like it. It¿s also not clear to me that people who say they¿re previous purchasers are more reliable when it comes to conforming with stated intent. A footnote then suggests that people who say they¿re potential purchasers should be counted, regardless of what they later do, because what they say indicates that they are at least potential purchasers, but I¿m not sure that follows either (and still leaves us with the problem of what the ads mean to the people who say, and perhaps even think, that they aren¿t potential purchasers but end up buying anyway). In the end, there may not be much a surveyor can do to deal with the mismatch, unless the product/service at issue has particular characteristics that make purchases more predictable (e.g., cigarettes and addicted smokers). There¿s similar research uncertainty about the desirability of a ¿don¿t know¿ option¿courts and the NAD love it and may kick out surveys that lack the option, but it