ICANN’S NEW gTLD PROGRAM: A SECOND WAVE OF CYBERSQUATTING ON THE HORIZON?

August 12, 2011
Building a powerful trademarked brand requires extensive investment of business resources. In fact, the value of the brand is reflected in the “good will” associated with the business’ identity of trust and value and is measurable as the difference between a Company’s book value and their enterprise value on the balance sheet. Therefore, part of any strategy to protect a brand’s good will requires a high level attention to mitigate threats, specifically where it pertains to the Internet.

In June, the Internet Corporation For Assigned Names and Numbers (“ICANN”) approved the gTLD program, thereby opening the availability of hundreds on new domain name extensions from January 12, 2012 through April 12, 2012. While the registrar-registry cross ownership rules are still unresolved, the implications of this new program is that trademark owners will probably see a resurgence of Cyber-squatting and will be forced to rigorously defend their trademarks on an international scale.

“Cyber-squatting” means the registering, trafficking in, or using a domain name with bad faith intent to profit from the goodwill of a trademark belonging to someone else. Its derivative, “Typo-squatting” means registering domain name variants of the trademark owner’s mark. These practices are typically designed to exploit the good will of well-known brands. Most of these infringers are either using the domain to drive AdSense revenue from impressions or click-through links to competing brand links or they are extorting mark owners for exuberant fees to acquire the domain name.

To protect good will (and presumably enterprise value), trademark owners need to be vigilant about scouring the Internet frequently for these types of activities.
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THE “NON-LEGAL” STRAIGHT TALK OF NAVIGATING THE BEAST OF REALITY TELEVISION

April 12, 2011
Did you know that reality television was born out of the SAG strike of 2000? After years of pitching network executives without success, Realty TV Pioneer Mark Burnett exploited the opportunity of the actors’ strike by offering his new concept of unscripted television to the American consumer, changing the history of programming forever.

How many of you have a great idea for a reality TV show that’s going to be worth millions? As an entertainment attorney in Los Angeles, I see everyone pitching one …at cocktail parties, at restaurants, even at the grocery store checkout (I was even asked to sign an NDA to hear the idea). I would bet everyone in America has their own reality TV show brainchild (even if they keep it to themselves for fear of someone stealing it). While an idea or show concept may be fantastic or unique to its creator (which, by the way, it rarely is), the ability to get it produced and on television is extremely difficult.

Prior to the proliferation of cable and the Internet, Hollywood’s control over television content distribution dictated the marketplace for programming consumption. Productions had largely received funding by media dollars funneled to the networks from national advertisers, and if you know the people that control these purse strings, you can master the distribution game.

Click below to find out more about new financial models for reality television production.
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2011 SUPERBOWL XLV – THE PARADIGM SHIFT IN USER GENERATED COMMERCIALS

March 12, 2011
Whether you were rooting for the black and gold or the Packers in Superbowl XLV, or if you were one of the 400 fans who couldn’t get your seats at Cowboys’ Stadium because of the local fire code, there was something bigger happening the night of February 6, 2011 (and no, it wasn’t the Black Eyed Peas playing Sweet Child ‘O Mine with Slash). It was the first time ever that a major advertiser took the chance on giving three of its fans the opportunity to strut their stuff with user generated commercials on one of the most televised events of the year…. and walk away with 3 of the top 5 slots for the best Superbowl ads.

Click below to find out how the new paradigm of Doritos’ user generated television commercials is changing the playing field for brands from both a business and legal perspective.
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FROM NAPOLEON TO ZUCKERBERG: SOCIAL MEDIA CHANGES THE GAME FOR SWEEPS AND CONTESTS

January 12, 2011
Sweepstakes and contests have arguably been in existence from the time of early human civilization as an incentive-based mechanism to produce a strategic objective. For example, in 1809 Napoleon Bonaparte offered a prize of 12,000 francs to the person who invented a more effective method of storing food. The winner, Nicolas Francois Appert, submitted the method of boiling and sealing food in glass bottles (which soon were replaced with tin cans), which made food portable and killed microbes that would cause spoilage, enabling Napoleon’s army to continue their conquests across central Europe.

In the modern phenomenon of social media, brand managers are scrambling to find new ways to interact with consumers and produce a relevant experience with their brand because consumer attention span and loyalty are becoming more divergent. Facebook, Twitter, MySpace, Linked-In, Four Square and more segmented niche social networks are now integral parts of marketing strategies for some of the world’s top consumer products because these platforms are where the audiences now are aggregated and interacting.

In light of the challenge for marketers to marry social media with traditional incentive-based programs, such as sweepstakes and contests, marketers are faced with new legal and business threats that they had not previously encountered.
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RISK AVERSE PRIVACY POLICIES AND TERMS OF SERVICE FOR THE UNPREDICTIBLE SOCIAL MEDIA SPACE

December 12, 2010
Website privacy policies and terms of service exist on practically every website and mobile platform. Of course, not all policies and terms of service are equally good and agencies and publishers should be aware of underlying business and legal issues when designing these policies.
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trademark basics that every interactive agency needs to know or will pay for later

August 12, 2010
What is a trademark? Why should interactive agencies even care about them? If you are in the business of creating new logo designs, launching new brands, or refreshing client brands, then a meaningful understanding of trademarks may help an agency and their clients avoid significant pitfalls that could save thousands if not millions of dollars.

The most common situation in which agencies are exposed to trademark infringement is the development of new designs for client logos or product names that may resemble or sound like another company’s marks. Agencies may erroneously believe that if they use a mark for a different classification of goods and services from an already established mark means there are no issues regarding trademark dilution or infringement. This is a faulty assumption.
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Serious Consequences For Creative Firms That Do Not Effectively Manage Copyrights

June 12, 2010
The phone is ringing off the hook, the emails keep piling in, the client is demanding that the campaign is launched by the end of day and your vendors are already three weeks behind schedule. This is a typical day in the life of a creative agency account manager who has to balance between ensuring customer satisfaction, the company’s interest in making a profit and the production team’s ability to bring in the project on-time and on budget.

In the bustle of this day, what easily gets left out of the equation is ensuring that the legal terms and conditions of the services agreement is being properly structured into the agency’s process. Most likely, copyrights are often overlooked, particularly when dealing with third party subcontractors and freelancers.
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7 DEADLY SINS OF CREATIVE AGENCY SUBCONTRACTING

April 12, 2010
Over the next few years, leading economists forecast a jobless economic recovery for the US market. As many advertising and interactive agencies have downsized their workforce during the recession, it is likely that prudence will dictate agencies’ reluctance to re-staff during the next few years. To minimize overhead and cash burn is for agencies to step up their subcontracting activities with free-lancers and smaller agencies to supplement their core teams. This way, the agency maintains some flexibility to increase or decrease staffing based upon projects in hand...
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“BET THE FARM” RISKS INTERACTIVE AGENCIES FACE IN THEIR MASTER SERVICES AGREEMENT NEGOTIATIONS

March 12, 2010
When we interview interactive agencies as to their standard practices and thinking for negotiating their master services agreements (“MSA’s”) with prospective customers, they typically will not possess the required level of risk management knowledge to identify significant threats to their business relative to the value assessment of the revenues, identity enhancement and, most importantly, profitability...
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Maximizing Post-Recession Building and Exit

December 12, 2009
An effective business strategy is a plan of action to fulfill the business mission of increasing enterprise value for its owners. The meaning of “value” is not obvious, as it is a relative interpretation and not something concrete that you can point to. In the context of investment or acquisition, value is a fundamental assessment of relative return on deployed capital.

Most entrepreneurs don’t appreciate that their proposition to investors or buyers competes with potentially hundreds or even thousands of other investment vehicles...
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Victory For Video Games in California

March 12, 2009
I had previously written an article in November 2005 regarding In reaction to Governor Schwarzenegger’s A.B. 1179, making it illegal for the sale of a “violent video game(s)” to anyone under the age of 18. The Video Software Dealers Association (VSDA) and the Entertainment Software Association (ESA) had filed suit to seek judicial determination that the statute was unconstitutional.

In 2007, Judge Ronald Whyte issued a preliminary injunction against enforcement upon determination that the statute was unconstitutional which was appealed by the Governor’s office. As of last month, the 9th Circuit rejected the state’s appeal...
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Grokster on Remand; The Implications of Peer-to-Peer on Social Networks

November 12, 2007
While most attorneys in the new media / IP practice are very familiar with the Supreme Court’s ruling in Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd. 545 U.S. 913 (2005) 380 F.3d 1154 the recent lower court order for permanent injunction warrants some attention. Having written several articles related to the safe harbor rules of the Digital Millennium Copyright Act, the effect of the District Court’s holding on User Generated Content social networking sites would appear extremely relevant for technology and IP practitioners...
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The Battle of The Titans: Technology v. Content A Legacy of Our Culture

November 12, 2007
Almost like a scene from a popular epoch film, two formidable industries face
each other in a war over territory, survival, and power…the battleground…peer-to-peer file sharing technologies, user generated content sites, traditional notions of copyright law and the Digital Millennium Copyright Act (“DMCA”). It is not surprising after the Viacom $1 billion lawsuit filed against YouTube this past March has drawn much attention to this old world v. new world disruption that implicates not only the business community and markets, but also the very tenants of US intellectual property laws. As no one knows for sure as to the outcome of these legal campaigns, one can only offer speculation as to what will the future hold for two seemingly conflicting business models...
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advertisers be warned: fine print may not always save you

August 12, 2006
Most advertisers understand that disclaimers and fine print which are required for print and television ads to meet broadcast and publisher guidelines have traditionally been a safe-haven for establishing industry standards against false and deceptive trade practices. Notwithstanding this, in an effort to devise creative direct response campaigns to elicit higher conversion, many agencies and advertisers push the proverbial envelope with promotional mechanisms which make an inference of deception and use fine print legal terms to try to mitigate the culpability associated with such misleading practices...
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perfect 10 v. Google - Issues With Framing

March 12, 2006
While most of us regularly conduct Google searched to find content that is relevant to us, a recent preliminary injunction grated by the 9th Circuit has created a potential ripple effect in the world of customized content search and aggregation.

More specifically, on February 2006, the US District Court granted Perfect 10 an injunction against Google from posting infringing thumbnail image which was retrieved using Google's image search capability. Further, while the facts rested primarily upon the image search function used in conjunction with in-linking and Google's Adsense program, the implications of this decision is significant...
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a hand in the cookie jar for ad agencies; copyright claims against chiat day

February 12, 2004
In February 2004, celebrity rap singer Eminem filed a federal copyright infringement action in US Federal District Court (6th District) against Apple, Viacom and their advertising agency TBWA/Chiat Day. This past month, the case has sustained the first round of defenses and should proceed to trial unless first settled by the parties. Eminem alleges that Apple's MTV and web broadcast advertisement depicting a ten year old singing the Oscar-winning theme song to the film "8 Mile" to promote iPod and iTunes infringes upon his copyrights...
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can-spam: the new deal for email marketers

December 12, 2003
With a Congressional estimate of approximately 45% of email transmissions constituting unsolicited spam e-mail, the landscape of internet marketing has been constantly changing over the past several years, The U.S. Senate recently passed the CAN-SPAM bill entitled "Controlling the Assault of Unsolicited Pornography and Marketing Act of 2003, (S.877), which is expected to get signed into law early next year. This new legislation will have far-reaching effects on agencies implementing integrated marketing campaigns...
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