Adlaw By Request : Advertising & Marketing Lawyer & Attorney : Reed Smith Law Firm : AdLaw By Request & KidAdLaw

Recently, a few clients have inquired as to whether or not commercials need to be cleared with the cable networks. 

Some cable networks do require that commercials be submitted for review and approval prior to airing. The cable networks that require clearance are ABC Family, Fox Cable Networks, MTV Networks, Nickelodeon and MyNetwork TV. NBC Universal Cable also requires clearance, but only for certain commercial categories.

While most cable networks do not require clearance, many have Standards and Practices Departments that will review advertising submitted by advertisers or ad agencies. These cable networks include Discovery Communications, Turner Networks, ESPN, E! Entertainment and CNN, just to name a few.

When clearing commercials for clients, I generally submit clearance materials, such as scripts, storyboards, rough-cuts and final commercials, to the major broadcast networks, as well as to the cable networks that require clearance, at the same time.

Sometimes clients have a difficult time determining whether or not to submit commercials to the cable networks for clearance. In such instances, I often advise clients to consider clearing commercials with the cable networks that do not require clearance under the following circumstances:

• The commercial message or content is controversial in nature.
• The product being advertised falls into a certain commercial category, such as alcoholic beverages, M-rated video games, weight loss products, dietary supplements or R-rated movies, as these categories can have special requirements and restrictions.
• The client has an exceptionally heavy cable buy.

By clearing commercials with the cable networks, clients have the opportunity to rectify any issues that may arise prior to the commercials being produced or finalized. This will help ensure that the final versions, when submitted for final review, will be approved for air.

Marilyn Colaninno is Director of Rights and Clearances for Reed Smith and is responsible for clearing commercials for the firm’s many clients in the advertising industry. If you have specific questions, please contact Marilyn directly at 212-549-0347 or mcolaninno@reedsmith.com. 

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MSNBC:  'Corn sugar' is false advertising, FDA warns

Industry attempts image makeover after scientists linked product to health problems

The Food and Drug Administration has cautioned the corn industry over its ongoing use of the term "corn sugar" to describe high fructose corn syrup, asking them to stop using the proposed new name before it has received regulatory approval, The Associated Press has learned.

Contra Costa Times:  Bay Area elected officials urge FDA to ban menthol in cigarettes

Bay Area anti-tobacco advocates are lobbying elected officials to urge the federal government to ban the use of menthol in cigarettes and other tobacco products.

NY Times:  Setting Boundaries for Internet Privacy

Watchful European privacy regulators are wielding increasing influence beyond the Continent’s borders. Last week, they pressed Google, as they had Apple, to change the way it collected data on cellphone locations worldwide.

But there is one area where even European regulators appear stymied — the tracking of consumer Internet surfing habits by technology companies, advertisers, Internet service providers and Web businesses that focus on consumers on the basis of online behavior.

St. Louis Post-Dispatch:  Class action trial against makers of light cigarettes begins in St. Louis

Lawyers are seeking up to a billion dollars in a class action suit on behalf of Missouri smokers against tobacco giant Philip Morris, accused of claiming light cigarettes were safer than regular cigarettes when they weren't.

Adweek:  Proponents of New Food Marketing Guidelines Win Senate Victory

Committee votes to shield proposal from House opposition

Proponents of the federal government's proposed new guidelines on marketing food to children scored a symbolic victory Thursday night, as the Senate Appropriations Committee voted to support the guidelines against opposition from the House.

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From the proposed changes to COPPA to the latest developments in the area of self-regulation of food marketing to children, the CARU conference to be held Wednesday, October 5, 2011 in New York City will be one of the best places not only to learn the details but also to interact with leaders in the industry to are on the front lines of self-regulation. Furthermore, FTC Commissioner, Julie Brill, will give a keynote address. Commissioner Brill tends to represent the more activist tendencies of the Commission, and those in attendance should be able to ask pointed questions and express concerns. The agenda and full conference information is located on the CARU website.

Because Reed Smith is a sponsor of the CARU conference, if you register by contacting Rey Persaud at 212-705-0113 or via email at rpersaud@narc.bbb.org and mention this blog post, you will receive a $100 discount on the conference fee. Offer expires October 3, 2011.

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As described in Reed Smith's April 22, 2011 Client Alert, to go along with .com, .net, and the other current top-level domains ("TLD's"), the formation of a new .xxx TLD has been approved for websites related to the adult entertainment industry.

Since the .xxx TLD is intended only for adult entertainment industry websites, applicants who want to set up .xxx domains will need to certify that they are in the industry; however, trademark owners may worry that cybersquatters and other entities will attempt to register .xxx domains related to well-known brands to take advantage of (and thereby damage) the brand's goodwill. Reed Smith's prior Client Alert discussed some of the initial details regarding the system set up to deal with some of those concerns. This Alert serves as an update to the most important trademark protection in the .XXX system by far: the "Sunrise B" Period.

For more information, please read Reed Smith's Client Alert, written by Brad R. Newberg, Gregory S. Shatan, John L. Hines, Jr. and Angela M. Washelesky.

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On August 25, 2011, Facebook and Lamebook, a self-described “fun humor blog” which highlights funny, absurd and “lame” things people post on Facebook, settled their trademark dispute. The dispute began in early 2010 with Facebook sending Lamebook a cease-and-desist letter to change its name and stop using the Lamebook mark. After months of discussions between the parties, Lamebook filed a lawsuit in Texas in November 2010 seeking declaratory judgment that it was not infringing the Facebook trademark or trade dress rights. Days later, Facebook filed its own suit in California claiming trademark infringement. Facebook then dismissed its case, without prejudice, after a failed attempt to have the Lamebook suit dismissed or transferred. 

The parties released a mutual statement settling the Lamebook lawsuit, stating that, “We are pleased to arrive at an agreement that protects Facebook’s brand and trademark and allows for Lamebook’s continued operation … The parties are now satisfied that users are not likely to be confused.” As part of the settlement, Lamebook agreed to add a “prominent disclaimer” to its website and won’t seek trademark protection for its name. The disclaimer that now resides on the Lamebook website states, “This is an unofficial parody and is not affiliated with or associated with, or endorsed or approved by, Facebook.”

It’s unclear whether Facebook settled because it was concerned about the possible outcome of litigating a case in Lamebook’s hometown of Austin, Texas, or whether it wanted to avoid the potential negative publicity associated with the case. Or maybe Facebook was concerned that, given Lamebook’s argument that it was a parody website, the case would have turned out similar to the prominent Louis Vuitton Malletier, S.A. v. Haute Diggity Dog, LLC case (507 F.3d 252), which found that the defendant Haute Diggity Dog did not infringe or dilute the Louis Vuitton trademark with its Chewy Vuiton line of products. Regardless of the reason, the settlement is surprising considering how protective Facebook is of its intellectual property rights. Facebook currently has unresolved disputes against other “-Book” marks, including TeachBook.com, FacebookOfSex.com, and Shagbook.com. 

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ClickZ:  Facebook Tests Ad Opt-Out Feature

Facebook has been testing a couple new user features that affect big and small brands.
First, the company is giving some people greater control over the ads they see. A subset of Facebook users is being offered the opportunity to "Hide all from [advertiser]" when they mouse over the "x" in the upper right hand corner of an ad. Selecting that option apparently eliminates future ad impressions served to the user. It's unclear whether the user is opting out of that particular campaign or all future ads from the brand.

Reuters:  False ad suit can proceed versus Groupon: attorney

A U.S. judge said parts of a false advertising lawsuit can proceed against online coupon distributor Groupon, according to one attorney who attended a court hearing on Wednesday.

Environmental Leader:  Are Your Marketing Claims ‘Green Guide’ Compliant?

Upcoming Changes Further Limit Environmental Claims

Last fall, the Federal Trade Commission (FTC) proposed revisions to its “Guides for the Use of Environmental Marketing Claims,” commonly known as the “Green Guides,” first published in 1992. The agency published these proposed changes to address emerging environmental claims. The FTC has not announced a final publication date, but prudent companies will already be reflecting the FTC’s views in their labeling and advertising.

NPR:  FDA Cooking Up Helpful New Nutrition Facts Label

Uncle Sam wants you to know more about what you're eating.

The Food and Drug Administration wants to revise the nutrition facts label — that breakdown of fats, salts, sugars and nutrients on packaging — to give consumers more useful information and help fight the national obesity epidemic.

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ClickZ:  Apple to Restrict iPhone Trackers Used in Ad Targeting

Apple has indicated that it may withdraw developer access to unique device identifiers (UDIDs) on the iPhone, which could have major implications for the way ads are served within applications on the device. Networks and analytics companies often make use of the mechanism to target, frequency cap, and track mobile ads, serving a similar purpose as cookies do on desktop computers.

Environmental Leader:  ConAgra Sued Over ‘Natural’ Claims

A law firm is inviting consumers to submit claims against companies using the term “natural” on their foods, as the attorneys pursue a class-action lawsuit against ConAgra.

FTC.gov:  FTC Updates Telemarketer Fees for the Do Not Call Registry

The Federal Trade Commission has announced updated fees starting on October 1, 2011, for telemarketers accessing phone numbers on the National Do Not Call Registry. All telemarketers making calls to consumers in the United States are required to download the numbers on the Do Not Call list to ensure they do not call consumers who have registered their phone numbers. The first five area codes are free, and organizations that are exempt from the Do Not Call rules, such as some charitable organizations, may obtain the entire list for free. Telemarketers must subscribe each year for access to the Registry numbers.

The Recorder:  Facebook Settles Trademark Fight with Lamebook

The trademark battle between Facebook Inc. and the parody site Lamebook.com is over.
The companies have reached an agreement that lets Lamebook continue to operate under its current name. But Lamebook, which mocks the funny and "lame" things people post on Facebook, will add a disclaimer to its website and will not seek trademark protection for its name.

The Telegraph:  Motorola Atrix advert banned

Motorola has been banned by the Advertising Standards Agency from claiming its Atrix phone is the most powerful smartphone in the world because the Samsung Galaxy SII has a better processor

Motorola has been banned from claiming its Atrix phone is the “world's most powerful smartphone". In a new ruling from the Advertising Standards Authority (ASA), an advert which made the claim was found to be misleading after two complaints from Samsung users. 

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