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August 10, 2005

Sweepstakes Entry May Come Calling, Despite "do-not-call" registry

Recently, the Arkansas Atorney General has seen a rise in the number of complaints from consumers claiming that they are being contacted by telemarketers despite having signed up for the do-not-call registry. Upon investigating the claim, the state has found that in fact, the consumer has signed away his or her right not to be called by signing up for a sweepstakes or other trade promotion.

Increasingly, marketers and companies are adding language to their sweepstakes rules that state that those entering are specifically granting permission to receive a home phone call from the sponsoring organization, despite the fact that they are not on the do-not-call list. While a change in promotions law may be imminent (especially in Michigan, where similar cases have been brought), currently, it is not a violation of promotions law to require a person to be contacted by the sponsor in order to enter. Moreover, the do-not-call list only affects home numbers. Thus, at trade shows, where consumers are asked to drop their business card in order to be eligible to win a prize, there is generally no proscription against companies using that information to market their services.

Practice Pointer: It is certainly legitimate for companies to ask for contact information in order to reach potentially new customers and doing so through a promotion is a time-tested way to drive numbers. The fallout, however, for burying such requirements in the fine print can be worse than never having asked for the information in the first place. Companies should be clear about their desire to use the information they collect for marketing purposes, even if it reduces slightly the number of entries they receive.

Posted by Tsan Abrahamson at 04:44 PM

August 02, 2005

"Grand Theft Auto" Video Game on Collision Course with Game Raters.

Beware of Secret Downloads.
Take Two Interactive and subsidiary publisher Rock Star Games have been deflecting the firestorm fueled by their latest video game release, Grand Theft Auto: San Andreas ("GTA").

Yesterday, the Australian Office of Film and Literature Classification revoked its original adult rating for the game, making GTA illegal to sell, advertise, or distribute in the country. This follows a decision by the U.S. Federal Trade Commission ("FTC") to re-rate the game after it was alterted to "secret downloads" readily available on the web that added additional sex and violence scenes dubbed "Hot Coffee."

The revocation by Australia coupled with the re-rating by the FTC has prompted certain large retailers, like Wal-Mart Stores to remove the game from sale. This has forced the company to ratchet down their sales predictions for the game by $40 Million.

Take Two is about to take two more: PC World reports that the company is facing two class-action lawsuits from plaintiffs alleging that the company engaged in false advertising and fraud when it failed to disclose hidden content that would have otherwise classified the game as adult. Ouch. That scalds.

Practice Pointer: Companies should be encouraged to participate honestly in the self-regulation process.

Posted by Tsan Abrahamson at 03:42 PM

CARU Nicks Roca Wear for Advertising to Kids

The Children's Advertising Review Unit ("CARU") has reached an agreement with Roca Wear, a children's clothing line, to discontinue showcasing its website on advertisements directed at children.

Roca Wear produced an advertisement that appeared in the April 2005 print edition of Nickelodeon Magazine, which is exclusively directed at children. In the ad, Roca Wear prominently displays its web site and encourages readers to visit. The site is not designed for children in particular, but given the circulation of advertising, it is clear that children will visit the site. As a consequence, the site could, in theory, collect personally identifiable information from children without parental permission. Roca Wear has agreed to remove references to its web site in future advertising directed at children.

Practice pointer: If companies know (or have a reasonable expectation) that children may be visiting their website and registering with personal information, simply removing advertising may not be enough. Companies that have a prominent web presence will have to institute "neutral screening procedures" in order to filter out children under 13 and keep from contaminating their database. Merely because a web site is not directed at children does not mean children do not visit the site. Any site that has a "registration" process and is reasonably likely to attract children should institute a neutral screening process.

Posted by Tsan Abrahamson at 03:08 PM

Artist Barbed about Copyright Infringement Outcome

A federal court in Colorado denied Kathleen Todd's claim for copyright infringement and granted defendant's motion of summary judgment, on the ground that Todd's jewelry had no copyrightable features.

In 1996, Tood applied for and received a copyright registration for her jewelry crafted from barbed wire. Montana Silversmith's Inc. came out with their own line of barbed wire jewelry in 2000 and Todd sued for copyright infringement. The court found that while Todd was a skilled artists and her work had a certain "creative gestalt," and emotional appeal, these things lacked the precision necessary to define them from a legal perspective and was therefore forced to find that her designs did not add anything to the public domain features of the barbed wire.

Posted by Tsan Abrahamson at 02:42 PM