The headline is a mouthful, but in the time you read this column your personal data has probably been collected by the more sophisticated vendors with whom you do business and is being used to target you for more purchases. This now-common practice might offend or it might be seen as consumer-useful. It’s very clear, though, that artificial intelligence plays a role in selecting data capture and crafting the ad messages. Continue reading
Category Archives: Advertising
Celebrity Advertising Endorsements and Promotion Can Be Expensive — For the Celebrity
It’s the rare celebrity, whether sports or Hollywood, who has not acted as an advertiser’s spokesperson, or even as an endorser. The deals run from Jimmy Walker hawking Medicare insurance on late night TV to William Shatner, who made $13 million to promote Priceline. That’s not bad money for a few hours on the sound stage every year. Rapper Travis Scott is said to have made $20 million promoting McDonald’s on social media.
Not all of these deals pass legal muster, however, and when a celebrity endorses a product in his field of interest, such as a celebrity racecar driver pushing tires, the public has a right to believe the celebrity means what he says and actually uses the product. Where it is obvious the actor, or celebrity, is merely being paid to act as a spokesperson, product use is not needed. And, when the celebrity is given something of value to add an endorsement, disclosure is required. If these rules are not followed, the result may be a claim by a state attorney general, the FTC, or group of consumers that the celebrity endorser engaged in deceptive trade practices. Continue reading
Ads Bowing to the Pressure
Decades back when we first represented advertising agencies, the proliferation of titles involved executive vice presidents, senior vice presidents, vice presidents…well, you get the point. Someone once quipped “hand out titles, not raises.” Today, new positions abound in agencies. There are creative directors, chief experience officers, strategy officers, branding directors, and chief marketing officers. The latest misery to befall the maker of M&M candies evidences the need for a strategy king (or queen) in charge of sensitivity. Continue reading
Do Analogous State Statute of Limitations Apply When the Lanham Act Provides None, Or Do Equitable Considerations, Such as Laches? How About Both?
The federal Lanham Act goes beyond trademark protection and establishes causes of action, as well, for unfair competition, false advertising, and false association. Section 43(a), however, does not contain a statute of limitations for claims that arise under the Lanham Act for any of these improper activities. That’s different from the Copyright and Patent Acts which each provide for limitations and apparently that’s the way Congress wants it.
Duped by Goop
Before making health and wellness claims about products, companies should make sure the claims they are asserting are accurate. Accurate does not mean that customers stand by the product and agree with the claims — the asserted claims must be backed by science. If companies are not careful, they could face a false advertising suit. Continue reading
The Use of Proper Disclaimers in Ads
We review many ads that contain very prominent headlines designed to catch the consumer’s attention and draw her into the ad to buy the advertised product. You might ask, “What good is an ad that does not contain a prominent headline, intended to attract attention and draw in the consumer to purchase the advertised product?” Fair question.
But from time to time we see ads that really do not deliver what they purport to offer to the consumer; ads that employ both a bold headline to suck in the consumer and a disclaimer of the offered deal in the fine print, not proximate to the headline, to tell the consumer that what is advertised is not going to be provided. For example, a headline that offers a savings of 20% OFF EVERYTHING IN THE CATALOG, when, in fact, that ad contains a disclaimer, buried at the bottom of the ad in fine print that not “everything in the catalog” is 20% off; “restrictions apply.” Continue reading
Sometimes, Lighter is Better
Sometimes four eyes are better than two; and six are even better. This is how we feel when clearing ads for our clients, hopefully before they are presented to their clients, the advertisers.
There are really two things we want to apply accurately: The law and common sense. Just because an ad is legal does not mean it should be published. The idea that numerous people should review the ad is to address the sensitivities (or lack thereof) that some people may have, in which case a horribly embarrassing, and financially damaging ad, may be published.
Take the latest example, an ad for Heineken Light beer. In it, a bartender slides a bottle of Heineken Light towards a woman. The bottle passes several people of color before reaching a paler skinned woman. The tagline: SOMETIMES, LIGHTER IS BETTER. Continue reading
H&M Missed the Mark: Marketing Gone Wrong
You might remember Dove’s social media post that went viral in October 2017, showing a looping image of an African-American woman removing a dark brown t-shirt to reveal a white woman. Backlash ensued on social media and Dove quickly issued an apology admitting that the advertisement “missed the mark.”
Recently, Swedish worldwide apparel retailer H&M advertised a hoodie for sale featuring a black child, who lives in Stockholm, modeling a sweatshirt with the phrase “Coolest Monkey in the Jungle.”
Once again, many people took to social media to question how such an offensive advertisement was approved by the retailer’s marketing team. Among them was New York Times columnist Charles M. Blow who posted on Twitter, “Have you lost your damned minds?!?!?!” British-based diversity advocate, Models for Diversity, criticized H&M’s judgment in choosing this model to advertise the hoodie, tweeting, “How on earth can this be? SHAME ON YOU!”