Tag Archives: In the Courts

No Sleep ‘Til . . . Copyright Victory? The Beastie Boys Continue Their String of Successes with a $1.7 Million Award in Monster Energy Case

On June 5, 2014, a federal jury in the Southern District of New York awarded the Beastie Boys $1.7 million for copyright infringement and false endorsement committed by the beverage company Monster Energy. Since Monster Energy admitted to infringing on the band's songs at the outset of the trial, the issue at trial was to determine damages. In 2012, Monster Energy sponsored a video for a snowboarding competition, which featured a sampling of five of the Beastie Boys' songs. The Beastie Boys responded by suing Monster Energy for copyright infringement. The focal point of the group's action was a segment in the video that featured the words "RIP MCA," in a manner resembling Monster Energy's logo. According to the Complaint, the logo implied the group's endorsement of the video and violated a provision in deceased Beastie Boy Adam "MCA" Yauch's will, which prohibited any use of his name and/or likeness in promotional campaigns. In its defense, Monster Energy alleged that it received permission to use the sampling from Zach Sciacca (a.k.a. DJ Z-Trip), who originally created the sample with permission from the Beastie Boys. That allegation was later rebuffed in a third-party action brought by Monster Energy against DJ Z-Trip. Lacking the permission to use the sample, the federal jury ruled that Monster Energy should pay the Beastie Boys $1.7 million based on the jury's determination that Monster Energy's copyright violation was willful and in bad faith.… Continue Reading

Michael Jordan Wins Appeal in Trademark and Publicity Case

Back in 2009, Time magazine, the publisher of Sports Illustrated, ran a special commemorative Sports Illustrated issue devoted entirely to Michael Jordan's basketball career. Jewel Food Stores, Inc. ("Jewel"), the operator of supermarkets in the Chicago area, was offered free advertising in the issue in exchange for agreeing to sell the magazine in its stores. Jewel ended up running a full page ad in the issue congratulating Jordan on his induction into the Hall of Fame. The ad featured text recognizing Jordan's accomplishments and a pair of "23" sneakers, and prominently featured the Jewel logo and slogan in the middle of the ad.… Continue Reading

Model Suing Lions Gate Over Opening Credits of Mad Men

The next time you watch Mad Men, you may find yourself paying a little closer attention to the opening credits. Last week, Lions Gate Entertainment Corporation was sued by a model from the 1950s and 1960s who is alleging the company violated her publicity and privacy rights by using a photograph from her in the show's opening credits without her permission.… Continue Reading

Big Tobacco Ordered to Publish Corrective Advertising

On November 27, 2012, a federal judge ordered tobacco companies Phillip Morris USA, RJ Reynolds Tobacco, and Lorillard Tobacco, to publish corrective advertising statements that (i) say a federal court found that they lied about the dangers of smoking and (ii) disclose negative facts about smoking, including about smoking's negative health effects; the addictiveness of smoking; the lack of significant health benefits from cigarettes marked "low tar," "light" and similar words; the cigarette companies' manipulation of cigarette design and composition to ensure optimum nicotine delivery; and the adverse health effects of secondhand smoke. The court also found that the corrective advertising did not violate the First Amendment because the statements ordered are purely factual and uncontroversial, and are directed at preventing and restraining the defendants from deceiving the American public in the future.… Continue Reading

Facebook Tries to Settle ‘Sponsored Stories’ Class Action . . . Again

Earlier this year, we analyzed some privacy considerations with a class action lawsuit against Facebook accusing the social media giant of violating the rights of users through its "Sponsored Stories" advertising program. Per the Complaint, Facebook would not only display such ads, but would also use the "names, photographs, likenesses, and identities" of Facebook users to help promote the product to friends of those users. The Complaint alleged that a user would be associated with a product by choosing to click a "Like" button, and would then be automatically associated with the corresponding ad campaign, without compensation and allegedly without the user's consent.… Continue Reading

Sorry, Your Baby Can’t Read

Just before Labor Day, the Federal Trade Commission (FTC) filed false advertising charges against the marketers of "Your Baby Can Read!" The program, widely promoted via infomercials and the Internet, purports to use videos, flash cards and pop-up books to teach babies as young as 3 months old how to read. The complaint charges Your Baby, LLC, its former CEO, and the program's creator, Dr. Robert Titzer, with false and deceptive advertising and deceptive expert endorsements. According to the complaint, the defendants failed to provide competent and reliable scientific evidence that babies can learn to read using the program, or that children at age 3 or 4 can learn to read books such as Charlotte's Web or Harry Potter.… Continue Reading

Illegal Gambling and Legal Promotions: The Effect of the Recent Poker-Related Decision

There is a fine line between a lawful promotion and illegal gambling. Sweepstakes are legal, while private lotteries are not. Paying entry fees for a skill contest can be legal (depending on the circumstances), while placing bets is generally not. So it is with great interest that we follow gambling laws - of both the federal and state variety - throughout the country (and internationally as well).… Continue Reading

Fox Hopes to Nix Dish Network’s Hopper and PrimeTime Anytime Technology

In May, a series of lawsuits were filed against Dish Network by the broadcast networks -- CBS, NBC, ABC, and Fox -- over Dish Network's Hopper feature. Hopper allows viewers to automatically skip through television commercials on their DVR recorded programs and avoid messages from advertisers who have paid for commercial announcements. In connection with that suit, Fox is now seeking a preliminary injunction to stop the Dish Network from offering that feature, along with another feature called PrimeTime Anytime(and its AutoHop feature), arguing that such features cause fewer advertisers to buy commercials or to pay less for what they buy, therefore costing Fox revenue, and destroying the model upon which free television relies and ratings for commercials are calculated. Dish has responded that Fox is all wrong and that the fears expressed by Fox were unfounded. As reported in the press, this case is important because it puts technology in the center of a serious battle between what Dish believes consumers want and what Fox believes is essential to a healthy business environment.… Continue Reading

Case Update – Kim Kardashian Settles Her Look-Alike Lawsuit Against Old Navy

Just before the Labor Day weekend, Kim Kardashian ended her battle with Old Navy over the use of a look-alike. The settlement ends a year-long lawsuit (Kardashian v. The Gap Inc., et al., case number 2:11-cv-05960) in the U.S. District Court for the Central District of California that alleged violation of California’s right-of-publicity statute and … Continue Reading

Facebook and Lamebook Settle Trademark Dispute

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, … Continue Reading

NASCAR Sued Over Unsolicited Text Messages

On August 10, a California woman filed suit against Nascar Holdings, Inc., alleging that the company violated the 1991 Telephone Consumer Protection Act (“TCPA”) by sending out unsolicited text messages. According to the complaint, the text messages were sent in February of this year to promote a Sprint Cup race at Daytona. Interestingly, the plaintiff alleges that … Continue Reading

Corporations Do Not Have Personal Information Protected Under FOIA

The Supreme Court came down this week with a watershed decision that may effect businesses small and large which collect and store customers’ personal information. Despite AT&T’s attempt to argue they are a private citizen and, therefore protected under the Freedom of Information Act, the Supreme Court ruled otherwise and clarified the FOIA only applies … Continue Reading

California Supreme Court Halts ZIP Code Collection

Reed Smith colleagues on our Global Regulatory Enforcement Law Blog discussed a recent California Supreme Court ruling that declared illegal the collection of an individual’s ZIP code when completing a credit card transaction. As a result, the ability of many retailers to generate in-store marketing leads becomes even more difficult. We encourage you to visit … Continue Reading

Google’s New Trade Mark Policy – Buyers Beware

Google’s new trademark policy comes into play from the 14th September 2010 in UK, Ireland and Canada, and effectively most of Europe. The change has been received with differing views. One view is that it will ultimately result in a better surfing experience for users; the other is that it is nothing other than a ruse … Continue Reading

The Show Must Go On – But First Get Consent

…another important development in the area of mobile marketing and advertising. Last week, the U.S. District Court for the Northern District of Illinois’ Eastern Division found that a 20th Century Fox SMS campaign violated the Telephone Consumer Protection Act (the “TCPA”). While these cases provide extremely important guidance as mobile marketing continues to evolve into legitimate … Continue Reading

Increase in NAD Fee for CBBB Members

Effective March 15, 2010, the Council of Better Business Bureaus (CBBB) will be raising the CBBB Corporate Partner filing fee to $3,500 from $2,500 for filing a NAD challenge. This is the first increase in the Corporate Partner filing fee since 2005 and continues to represent a very significant discount to the filing fee charged … Continue Reading

The Study That Never Was – A Lesson in Comparative Advertising

On Jan. 19, 2010, Weight Watchers International Inc. of New York sued its rival, Jenny Craig, Inc., in the U.S. District Court for the Southern District of New York. The suit alleged that the latter’s ads were misleading and deceptive, claiming they reference a comparison study carried out by Jenny Craig between the two companies’ … Continue Reading

Facebook Catches a Big Phish

Once again, that truism that old habits die hard has been substantiated. The U.S. District Court of Northern California just awarded Facebook a $711 million judgment against the self-described “spam king,” Sandford Wallace, for violating the CAN-SPAM Act. The CAN-SPAM Act establishes the rules for sending commercial emails and bans “false and misleading” marketing emails. Wallace and … Continue Reading
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