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March 29, 2005

Telemarketers Might Be Dialing Up FCC Trouble by Calling Home-Based Businesses

The Telephone Consumer Protection Act (TCPA) prohibits telemarketers from calling homes that have been registered on the do-not-call list, maintained by the FCC. the TCPA does not protect businesses from those pesky phone calls. But what if your business is in your home? Currently, there is no provision in the TCPA to address this possibility. The FCC recently stated that it will not exempt telemarketers from liability should they make a call to a home-based business that is listed on the do-not-call list. Instead, it will review those calls to see if the call was made to a residential number or a business line. Watch out, Publisher's Clearing House: if granny is raking in the dough selling potholders on eBay, you may be in trouble.

Posted by Tsan Abrahamson at 04:28 PM | TrackBack

FTC Declines to Regulate Product Placement -- Advertisers Breathing Again

The FTC announced in February that it would not be proposing any new rules regarding product placement on television shows, despite its widespread use by advertisers to showcase products.

Commercial Alert, a consumer watchdog organization, has asked the FTC to investigate the practice of placing products such as household items, toys and other consumer goods in television shows. The watchdog group suggested that an on-screen disclosure be made each time a specially placed product was shown.

The FTC, after its own investigation, found that mere product placement did not violate Section 5 of the FTC Act, which prevents unfair and deceptive advertising practices. It reasoned that most product placements do not actively sell the product nor do they contain objective claims about the product. In cases where such claims were made, the FTC noted that the current regulations would suffice.

Posted by Tsan Abrahamson at 04:19 PM

March 22, 2005

AFP Files (Le) Copyright Infringement Suit Against Google

Google News, one of the more recent additions to the Google family of specialty sites has been sued in the District of Columbia by Agence France Presse (AFP), the French equivalent of the Associated Press. In the suit, AFP claims that Google News is "reproducing and publicly displaying AFP's photographs, headlines, and story leads on Defendant's news aggregation Web site." In addtion, the suit claims that Google also is stripping from the lead stories AFP's copyright information.

Pivotal to this case will be the question of whether -- in the new digital age -- publishers of content have any duties beyond those noted in the Copyright Act to keep information on their web sites from being indexed by news web crawlers, like the ones at Google. According to Google, technology is available to block the web crawlers used by Google. AFP claims that a copyright statement is sufficient to ward off would-be infringers, and that it has not responsibility to purchase technology to keep out Google.

Other issues that will no doubt come up in the case include whether the headlines that Google is taking constitute the heart of AFP's creative authorship. On the one hand, headlines typically constitute only a few words compared to the total article. On the other, many copy editors work very carefully to craft headlines that will attract the reader and accordingly, can come up with some unique presentations. Then again, many news organizations use a technology called Real Simple Syndication, which automatically pushes headlines to users. Such widespread use of this type of technology suggests that the market for purchasing the article may not be depleted by the taking of the headlines.

One hopes that Google's litigation budget is not yet maxxed out. Google also recently launched a service called Google Books. According to Internetnews.com, Google Books indexes the content entire books such that a search query might trigger a quote from one of them. Shakespeare, perhaps or other books in the public domain may be fair game; still, wethinks we smell something smouldering.

Posted by Tsan Abrahamson at 12:55 PM | TrackBack

Conair Avoids Hairy Mess with Children's Advertising Review Unit

The Children's Advertising Review Unit ("CARU") announced today that it has reached an agreement with Conair Corporation, relating to its battery-powered toy that strings beads onto children's hair strands.

The commercials, claim CARU, suggested that girls who purchased the product would be more popular with boys. One of the CARU self-regulatory guidelines states that children should not be pressured into purchasing a product because they think it will make them more popular.

The commercial in question featured a girl being told by her friends that she "might want to work on that hair," before going out. Once she used Conair's beading device, the commercial shows a boy nodding and smiling his approval at her new look.

While Conair disagreed with CARU's findings, it has agreed to remove the scene containing the boy.

Posted by Tsan Abrahamson at 09:21 AM | TrackBack

March 21, 2005

"Get Bent" says Hugger-Mugger to Gaiam in Trademark Infringement Suit

Last week, Hugger-Mugger brought suit in federal court against Gaiam, alleging trademark infringement for Gaiam's use of the term "Hugger-Mugger" as a key search term. Hugger and Gaiam are purveyors of consumer yoga products. According to the suit, Gaiam is using Hugger-Mugger's registered trademark, HUGGER-MUGGER, to divert consumers to the Gaiam site. Hugger-Mugger claims that Gaiam has contracted with various search engines, such as Google, MSN, About.com, and Yahoo! to use the trademark. Each time a search engine user types in the term HUGGER-MUGGER, the suit claims that users are given the opportunity to enter the Gaiam site. This lawsuit is just one of a mounting number of suits that calls into question the practice adopted by many competitors and search engines of using third party trademarks. This suit, however, marks one of the first that goes directly after the competitor for trademark infringement. While it seems evident from some recent cases that have been handed down by the courts that search engines are not likely liable for selling otherwise descriptive terms that may also be trademarks, it is still unclear how the courts will react to more fanciful trademarks used by competitors and search engines. No doubt, Hugger-Mugger's Chakras will be out of alignment until this matter is settled.

Posted by Tsan Abrahamson at 02:03 PM | TrackBack

March 01, 2005

Blue Frog Plunks Down Its Own BLING in Trademark Infringement Suit

Blue Frog Mobile, the people who brought BLING TONES (hip-hop ring tones) to your mobile phone, has filed suit in Seattle District Court alleging trademark infringment against Lagardere Active North America, Inc. for that company's use of the mark PUT SOME BLING IN YOUR RING and THE HOOK UP.

Blue Frog claims rights (or rizzights if you're keeping up) in the marks GET SOME BLING IN YOUR RING for its ring tone download services, and THE HOOK UP, under which it promotes its dating services. According to the suit, Blue Frog contends that Lagardere uses the same or nearly identical marks to promote its identical services. The suit also seeks to cancel Lagardere's trademark application to register the mark BLING TONES on the ground that the mark is merely descriptive of hip-hop ring tones and is frequently used by the hiphop community. Blue Frog is hoping the district court will see things its way and throw down a ruling fo'shizzle in favor of the ring tone hawker. Stay tuned, peepz.

Posted by Tsan Abrahamson at 11:13 AM

1-800-SKI-VAIL Carves Out a Win In Trademark Infringement Suit

Eric Hanson, operator of 1-800-SKI-VAIL, successfully defended his business and phone number against Skiing Behemoth, Vail Associates, who filed suit against the reservations agent for trademark infringement.

In ruling in favor of Hanson, who also owns 1-800-SKI-TELL(URIDE) and 1-800-SKI-ASPE(N), the district court judge stated that Vail Associates could not use its registered trademarks to stop Hanson from using the phone number. In addition, the court threw out Vail Associates' request to cancel Hanson's own trademark registration for 1-800-SKI-VAIL. In the Judgment, the judge noted that Vail Pass, for which the mountain was originally named, predated the Vail ski area (originally developed by George Gillette) and thus Vail Associates cannot claim exclusive rights to the use of the word. Not snowed by Vail's arguments to the contrary, the judged used Vail Associates' own witnesses against them, showing that travelers do not associate a ski vacation and its with a specific company, but rather a location. In the end, Hanson was one happy (phone) mogul.

Posted by Tsan Abrahamson at 11:12 AM