The specific requirements are as follows:

Disclosures

The settlement prohibits the defendants from use billing information to obtain payment from a consumer unless prior to using such information the defendants obtained express informed consent of the consumer. To get express informed consent the following must be clearly and conspicuously disclosed in relation to the request for the consumer's express informed consent:

1. A description of the good, product, program, or service being offered;

2. The specific billing information to be used;

3. All fees and costs, including shipping and handling or processing fees;

4. The entity on whose behalf the payment will be assessed, if the entity is not clearly and conspicuously disclosed in the Defendants' advertisements;

5. How the charge will appear on consumers' billing statements, if the billing statements do not contain the name of the entity or product on whose behalf the payment will be assessed;

6. The amount of any subsequent charges and, if applicable, the dates or frequency of any subsequent charges, including renewals;

7. All material restrictions, limitations, or conditions applicable to the purchase, receipt, or use of the good, product, program, or service that is the subject of the offer; and

8. The steps that the consumer must take to cancel, or, if applicable, obtain a refund

for, the good, product, program, or service that is the subject of the offer.

Use of a Click Button

The settlement also states that in connection with communications made through the Internet or other web-based applications or services, the consumer must indicate such assent by clicking on a button that is specifically labeled to convey such assent, or other substantially similar method.

Disclosure Must Be Clear and Contain No Additional Information

The settlement also stated that for all written offers (including over the Internet or other web-based applications or services): a check box, signature, or other substantially similar method, that consumers must affirmatively select or sign to accept the negative option feature. Immediately adjacent to such check box, signature, or substantially similar method, Defendants shall disclose all costs associated with the negative option feature, that the consumer is agreeing to pay such costs, the length of any trial period, and that consumers must cancel to avoid being charged. This disclosure shall contain no additional information and shall be clear and conspicuous in relation to any other information provided on the page related to costs, risks, or obligations associated with any negative option feature, including terms such as "free," "discounted," "risk free," "no risk," "trial," or "no obligation."

The settlement also details what disclosures have to be provided to the consumer after sign up.

Confirmation of Order

The settlement requires the defendant to send the consumer written confirmation of any transaction involving a service, no later than the lesser of ten days after the date of the transaction or half the time of any trial period, via first class mail, or electronic mail if the transaction is made over the Internet or other web-based applications or services, with its purpose identified in a clear and conspicuous manner on the outside of the envelope, or in the subject heading, that includes all the information that is stated above, and a clear and conspicuous statement of the procedures by which the consumer can cancel or obtain a refund.

Although the terms of this settlement are only binding on the defendants, these terms set forth what the FTC currently views as complaint business practices and should be carefully considered by all marketers.

To learn more about our Internet law practice, click here.

Coach Services, Inc. recently found that its famous trademark COACH for handbags and related items was not quite famous enough to successfully challenge the registration of a COACH trademark by Triumph Learning LLC for educational materials used to prepare students for standardized tests. In Coach Services, Inc. v. Triumph Learning LLC, Case No. 11-1129 (Fed. Cir., Feb . 21, 2012) the Federal Circuit affirmed the decision of the Trademark Trial and Appeal Board rejecting Coach's opposition to the registration of Triumph's COACH trademarks, finding that there was no likelihood of confusion or dilution. The case is an example of how even famous trademarks have limits and cannot stop all uses or registrations of identical marks.

The court in Coach Services found that although COACH is a famous trademark for determining a likelihood of confusion, other factors weighed in favor of Triumph. Namely, the commercial impressions of the marks, when applied to the goods of the parties, were completely different. In addition, the vast differences between the goods and the trade channels could not support a finding that consumers were likely to believe that there was an affiliation between Triumph's test preparation products and Coach.

The court also found that the COACH trademark, while famous, had not acquired the level of fame necessary to prove trademark dilution. The court explained that in proving fame for dilution purposes, a party "must show that, when the general public encounters the mark 'in almost any context, it associates the term, at least initially, with the mark's owner.'" The word COACH simply has too many other meanings, and while it is associated with Coach in the context of handbags and related items, the word is not associated with Coach in other contexts. In addition, while not discussed by the court, it is worth noting that there are several other registrations for the word COACH for unrelated goods and services such as bandages, firearms, and pest control. Thus, when consumers encounter the word COACH, they would not automatically think of Coach.

It is understandable that a trademark owner does not want its trademark to be used or registered by anyone else, even for unrelated goods or services. However, a trademark owner should understand that its rights may have limitations and carefully evaluate whether it will be able to prove the elements required when challenging the use or registration of the mark by another party.

Duracell marketed its Ultra Advanced batteries on packaging and its website to have "up to 30% more power in toys" than its Ultra Digital batteries and encouraged consumers to buy Ultra Advanced batteries when using high drain devices. When Duracell began phasing out its Ultra Advanced line of batteries in favor of its Ultra Power line, it claimed that its Ultra Power batteries were its "longest lasting" batteries and that such batteries should be used only "when it matters most" rather than for everyday use.

The lawsuit states that"[d]efendants conspicuously failed to disclose that Ultra Advanced and Ultra Power branded batteries provided no material difference in battery life from any of their other alkaline battery products" and that such omissions materially mislead consumers. The lawsuit claims that defendants engaged in false advertising and unfair, fraudulent and unlawful conduct in violation of the California Business and Professional Code, California False Advertising Law and Consumer Legal Remedies Act.

The lawsuit is brought on behalf of anyone who purchased Duracell Ultra Advanced or Duracell Ultra Power batteries in California during the last four years. Plaintiffs are requesting that defendants make full restitution to the class of consumers harmed by such conduct, as well as pre-judgment and post-judgment interest, attorneys' fees and costs, and that defendants be enjoined from further misleading consumers about their battery products.

Companies should avoid charging a premium for a similar, competing product that fails to deliver additional benefits. The risk of regulatory sanctions or class action claims like this one should deter companies from marketing and selling such similar goods.

To view the complaint click here.

For more information on our Class Action Defense practice click here.

In the case of Blue Ivy Carter, after her birth several people ─ presumably hoping to make money off of her name ─ filed applications for trademarks that include the words BLUE IVY, including an application which has now gone abandoned for BLUE IVY CARTER NYC, and an application for BLUE IVY CARTER GLORY IV. Beyoncé's company also filed an application for BLUE IVY CARTER in several classes. This application is still pending; however, a prior registration for BLUE IVY for retail store services that registered before the birth of Blue Ivy Carter has been cited against the application in two classes. Since the owner of the BLUE IVY retail store has a legitimate federal registration that is blocking Beyoncé's pending application for BLUE IVY CARTER, the owner of the retail store may be in for a large payout if Beyoncé wants her trademark application to move forward in the trademark registration process. Since the Blue Ivy retail store has been using the mark since 2000 and has had a registration since August 2011, it has superior rights to the trademark for the services it uses the mark in connection with, as well as in connection with related goods and services. This now trendy name could end up being very lucky for the Wisconsin Blue Ivy retail store!

Another recent example is the spark of "Linsanity" around the country. Several hopeful applicants raced to file trademark applications for the LINSANITY trademark in order to cash in on the excitement. Since the rise of Linsanity, ten federal applications have been filed for the trademark, only one of which is by Jeremy Lin himself.

Famous people are likely protected from entrepreneurs trying to cash in on their names because a trademark application will be rejected if it falsely suggests a connection with a famous person, or if the mark includes the name of a living person who has not given his/her consent. However, if someone has been using a name that suddenly becomes trendy and does not have a federal trademark application before the trend, they could have a problem getting a federal trademark registration after the trend hits. This could happen in the case of an events planning company in Massachusetts that has recently filed an application for BLUE IVY, but has been using the name since 2009 (prior to Blue Ivy Carter's birth). While in the end, the events planning company may be able to obtain a federal registration in its mark, the company may be forced to spend more money trying to overcome trademark office rejections now that the mark is associated with a famous baby, than if the company had filed the application when it first began using the trademark in 2009.

In short, it is always a good idea to file a trademark application to try to obtain registration for your trademarks.

The legislation broadly defines 'business opportunity' as a the sale or lease, or offer for sale or lease, of any goods or services to a consumer for an initial payment of five hundred dollars or greater for the purpose of enabling the consumer to start or operate a business, which sale or lease is not limited to sales initiated or made by the telephone.

The legislation also includes the following in the definition of a "business opportunity": a solicitation of consumers in which the seller represents one or more of the following: 1) that the consumer may or will earn an amount in excess of the initial payment as a result of the purchase; 2) that a market exists for any goods to be made or sold or services to be rendered by the consumer; 3) that the seller will provide locations or assist the consumer in finding locations for the use or operation of vending machines, racks, display cases or other similar devices or currency-operated amusement machines or devices or any other devices; 4) that the seller may purchase from the consumer goods to be made or services to be rendered by the consumer; 5) that the seller guarantees, either conditionally or unconditionally, that the consumer will derive income from the business opportunity or that the seller will refund all or part of the price paid for the business opportunity or repurchase any of the goods supplied by the seller if the consumer is unsatisfied with the business opportunity; or 6) that the seller or an entity associated with the seller will provide a sales program or marketing program to the consumer unless the marketing program is offered in conjunction with the licensing of a registered trademark or service mark, if the trademark or service mark has been effectively registered under federal law.

The legislation requires sellers of business opportunities to provide certain information with registration. If the seller is soliciting consumers to purchase a business opportunity or merchandise related to a business opportunity the following must be disclosed in the registration statement: 1) the business experience of the seller, including the length of time that the seller has sold the business opportunity being offered to consumers or sold any other business opportunity to consumers; 2) the names of all businesses for which each principal or manager previously sold business opportunities; 3) the dates that each principal or manager previously sold business opportunities. If a solicitation involves a business opportunity or merchandise related to a business opportunity: the following must be disclosed in the registration statement: 1) a factual description of the business opportunity offered to be sold and of the merchandise, training and assistance that the seller will provide to the consumer; and 2) a statement describing any goods, services, signs or fixtures relating to the establishment or the operation of the business opportunity that the consumer is required to purchase, lease or rent directly or indirectly from the seller.

The legislation also requires to the seller to provide the consumer a written disclosure document at least five business days before the earlier of the consumer's execution of a contract imposing a binding legal obligation on the consumer or the payment of any monies, receipt of anything of value or authorization to charge a credit or debit card. The disclosure document shall have a cover sheet that contains specific wording.

In addition legislation provides that a consumer may cancel a business opportunity contract or agreement with a seller for any reason at any time within ten business days after the date that the consumer signs the contract or agreement or the date that the seller notifies the consumer in writing that the contract or agreement is accepted by the seller, whichever is later.

The Governor signed the bill on April 4, 2012 and it will go into effect 90 days after the current legislative session ends.

Recently the Arizona Attorney General has brought many enforcement actions against marketers that sell business opportunities. Companies that sell business opportunities need to carefully review these requirements to ensure they are in compliance.

To learn more about our Telemarketing law practice, click here.

Bullock filed a complaint in California state court alleging that her common law right of publicity/right of privacy was violated. The complaint alleged that "ToyWatch USA intentionally and prominently used Ms. Bullock's name, photograph, image, identity, and persona in advertising, marketing and/or promotion ... to sell watches." The complaint further alleges that in certain of the advertisements Bullock's "name, photograph, identity and persona were placed adjacent to or in close proximity of the Advertised Products, as well as the particular Defendant(s)' company name(s), logo(s), trademark(s), trade name(s), trade dress, and slogan(s), so as to create an unauthorized and false association with Ms. Bullock".

The lawsuit states that Bullock was not paid for the use of her name and image and that she "will not voluntarily appear in print or other media for a company or product unless she carefully selects and believes in the company and product, and unless the compensation she receives is commensurate with the value of the exploitation of her name, image, identity, and persona."

Bullock seeks damages and an injunction to stop the company from using her name and image. Bullock is only suing based on a violation of her right of publicity/right of privacy and does not allege violations of false advertising or trademark infringement, as other states have done in the past.

Celebrities earn substantial sums of money by licensing the rights to use their names and likenesses; thus it is important to ensure that these rights are not violated when promoting, marketing and advertising your goods and services. Even using a famous person's name without their image can be problematic. Such violations could result in a costly legal battle.

Applying New Jersey law (as that was where Einstein lived when he died), the court ruled that a postmortem right of publicity exists for celebrities, whether or not the celebrity exploited that right during his or her lifetime. While there was a question of whether Einstein effectively transferred his right of publicity to the University, the court found that there was no question that Einstein, and his rightful heirs, owned such a right. The court found that there was at least a question of fact as to whether GM's use of Einstein's image violated the right of publicity.

The court granted summary judgment on the University's unfair competition claims, however, finding that consumers would not likely be confused into believing that the University, as the alleged owner of Einstein's intellectual property rights, either sponsored or endorsed GM. The court was persuaded by GM's argument that "[t]he Advertisement does not state expressly (or even imply) that Dr. Einstein (or HUJ) endorsed the Terrain, nor would any reasonable reader reach that conclusion. Instead the Advertisement uses Dr. Einstein's face, superimposed on someone else's body, as a play on People magazine's "Sexiest Man Alive" edition, and to make a light-hearted point about the smart (but "sexy") features of the Terrain."

Regardless of the ultimate outcome of this case, it is important to clear the use of anyone's name and likeness in an advertisement or other promotional materials, even if the person is deceased or is not known to be a celebrity who actively licensed or used his or her name for commercial purposes.

The court found that the use of Clauson's photograph on the t-shirts could be used "to create false endorsement or false designation of origin, as well as claims for false representation of the characteristics or qualities of plaintiff's modeling services."

From a practical standpoint, the case raises an important issue for anyone selling products received from third-party suppliers or using materials prepared by others. For example, even if a company acquires the right to use a photograph from the photographer, that would not necessarily mean that a person depicted in the photograph has granted the right to use his or her image for a commercial purpose. The copyright in the photograph, which would be owned by the photographer, would not carry with it the right of publicity, which would be owned by a person depicted in the photograph. It is therefore important to determine the exact nature of the rights being granted, and explore whether there are any limitations on those rights, before the works of a third party are used for commercial purposes.

In a recent decision, the Fourth Circuit has revived Rosetta Stone, Inc.'s trademark infringement lawsuit against Google with regard to its AdWords program.

In 2009, Rosetta Stone sued Google for trademark infringement based on its sale of keywords to third-parties that used its trademark phrases, such as "Rosetta Stone", "Rosettastone.com" and "Language Learning Success", and others. Rosetta Stone claimed that the phrases were sold as keywords ─ without permission ─ to competitors and counterfeiters, which misled consumers into thinking the counterfeiters were selling genuine Rosetta Stone products.

Google argued that it was immune from trademark infringement claims because it used the phrases in a way that was functional to its business, which the Court of Appeals rejected. Google also argued that consumers were not confused because they could tell the difference between sponsored links and regular search results.

In 2010, the Eastern District of Virginia dismissed the case against Google ruling that its sale of AdWords using trademarked words or phrases in web searches would not confuse customers. However, the Court of Appeals reversed much of the lower court's decision and stated that "[a] reasonable trier of fact could find that Google intended to cause confusion in that it acted with the knowledge that confusion was very likely to result from the use of its marks".

Not surprisingly, the decision has stirred widespread interest among the business community. It will be interesting to see the final outcome of this case, but this precedent is certainly helpful to companies seeking to enforce their trademark rights with regard to Google AdWords. Companies should also consult with their counsel prior to purchasing any Google AdWords that contain the trademark of any other individual or entity. In many cases, a brand owner can enforce its trademark rights against a party that is misusing a trademark in keyword searches, metatags or as a domain name.

"The National Law Journal has recognized what we at Olshan have known since our firm's inception - midsize law firms can compete and win legal services," said name partner Robert L. Frome. "We have a good culture," Frome said. "That's why clients stay here. That's why lawyers stay here."

Olshan, known also for its Activist Investor, M&A and Corporate Finance practices, was recognized by NLJ editors for its major litigation victories. Partners Kyle C. Bisceglie and Herbert C. Ross were lead counsel for Atari S.A., representing the video game maker in a dispute with Hasbro Inc. over licensing of the toy maker's Dungeons & Dragons brand. Olshan defended hedge fund Accipiter Life Sciences Fund II (QP) L.P. in a suit brought by an investor, which was finally dismissed. Partners Thomas J. Fleming and Herbert C. Ross were lead counsel for Accipiter. NLJ also noted that a leading Advertising, Marketing and Promotions group joined Olshan in 2011.

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About Olshan

Olshan, a premier law firm based in New York, represents major businesses and entrepreneurs for their most significant transactions, problems and opportunities. Olshan's clients range from public companies, hedge, venture capital, private equity and other investment funds to entrepreneurs and private companies worldwide. Clients choose Olshan for innovative strategies and sophisticated, game-changing advice in corporate, securities law and shareholder activism, complex commercial, corporate and securities litigation, bankruptcy and creditors' rights, real estate, intellectual property and advertising. Since its founding, Olshan has offered an alternative to the AmLaw 50 law firm business model with responsive, independent and client-focused legal counsel provided by the firm's senior lawyers. www.olshanlaw.com.

Justin Bieber and Spike Lee's recent controversial tweets are just two examples of tweets gone wrong. In Justin Bieber's case, while promoting his new single, he used his Twitter account to send a message to his 19 million followers. "Call me right now," he tweeted, and included a Dallas-area phone number, replacing the last digit replaced by a question mark. Rapid Bieber fans began dialing the number, guessing the last digit. Of course, the number had nothing to do with Justin Bieber, but many Dallas residents received thousands of calls. Many of those residents are now threatening to bring legal action against Bieber.

In a similarly unfortunate Twitter incident, Spike Lee tweeted the address of an elderly Florida couple, claiming that it was the home of Trayvon Martin's shooter, George Zimmerman. The error forced the couple out of their home after their address was published. Lee has since agreed to settle with the couple for an undisclosed sum.

Although Twitter is fast and easy to use, it is important to check all tweets for accuracy.
If you are a public figure, or you are using your Twitter account for your business, keep in mind that you are using it for promotional purposes. Therefore, make sure what you are tweeting is accurate and does not infringe someone else's rights.

In response to the challenge, the advertiser submitted scientific evidence to the NAD purporting to validate its claims. The submissions, however, were in the form of abstracts or summaries of studies showing the health benefits of the individual ingredients contained in Serranol. The manufacture had not conducted any tests on the product as a whole. The NAD afforded very little weight to these studies.

Lesson number one: This point may be review for some of you, but the NAD repeats it so frequently that it bears remembering. The gold standard of competent and reliable scientific evidence for health claims are methodologically sound human clinical trials on the advertised product itself. Tests on the individual ingredients fall short of this benchmark because they do not take into account the possible interaction that the ingredients may have when combined into the product.

Lesson number two: According to the NAD, abstracts and informal summaries of studies do not impart enough information to be considered as competent and reliable scientific evidence. An abstract or informal summary of an article is less reliable than the full text of the study, because summary documents usually do not give the reader enough insight into how the research was conducted or how the data were analyzed to objectively evaluate the quality of the research and the conclusions drawn by the authors.

As a result of these shortcomings, the NAD recommended that all of the claims for Serranol be discontinued except that it could still be touted as an edible brown algae that reduced joint inflammation. This obviously was not the outcome the advertiser was looking for, and it refused to acknowledge that it would adhere to the NAD's recommendations. Which brings us to...

Lesson number three: There is a very big potential downside to ignoring the NAD. Under the NAD's procedures, if an advertiser does not submit a statement that it will follow the NAD's ruling (subject to its right of appeal to the National Advertising Review Board), the matter gets referred to the Federal Trade Commission for review and possible prosecution. The NAD made such a referral in this case. Given the cancer-related claims made for the Serranol product, an FTC action would not be at all surprising. This referral to the FTC shows that the NAD expects full participation in its proceedings even though it is not a court of law.

The plaintiff seek damages and claim violations of The Federal Wiretap Act, 18 U.S.C. § 2511; The Stored Electronic Communications Act, 18 U.S.C. § 2701; The Computer Fraud Abuse Act, 18 U.S.C. § 1030, as well as various state and common law claims.

Previously the personal information collected in one Google product was not commingled with information collected during the consumer's use of other Google products. Thus, Google did not previously tie a consumer's Gmail account to the credit card, banking, and brokerage websites that the consumer visited. Additionally, if a consumer had a Gmail account, the content of the consumer's communications would not be used by Google to optimize search results when that consumer used Google's search engine.

The new privacy policy, however, does not allow consumers to keep information about a consumer on one Google service separate from information gathered about the consumer by another Google service.

The Plaintiffs claim that Google's new privacy policy is nothing more than Google's effort to garner a larger market share of advertising revenue by offering targeted advertising capabilities that compete with or surpass those offered by social networks, such as Facebook, where all of a consumer's personal information is available in one site.