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.

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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!”

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Branding 101: Understand Your Message

“Bluetiful” is the newest addition to the 24-count Crayola crayon box. The color was inspired by YInMn Blue, the blue pigment discovered accidentally in 2009 by chemist Mas Subramanian and his team at Oregon State University. Bluetiful replaces the yellowish color, Dandelion. (What was wrong with Dandelion?)

Was “bluetiful” an error in branding? Critics say the name will teach children a non-word, and incorrect spelling. No doubt it will. But according to Crayola’s CEO, “[b]luetiful was the clear winner,” out of the other possible names, Blue Moon Bliss, Dreams Come Blue, Reach for the Stars, and Star Spangled Blue.

Disconnects in language, culture, and customer attitudes have resulted in some pretty memorable and clear branding misses.

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