What types of issues should a business’s legal partner be looking for when running an ad clearance?
The attorney should look at a wide range of issues which, of course, vary from campaign to campaign. The attorney should consider whether there is factual support for the material ‘claims’ that are being made at the heart of the ad, and whether the claims and other elements of the campaign will violate the rights of others in terms of intellectual property rights, publicity or privacy rights, or third-party contract rights.
The attorney should also consider whether the claims and other elements violate applicable law on a federal, state, county and/or local level. This is of particular importance in some specific industries. The food and restaurant industry, for example, is highly regulated at a number of levels of the government.
The attorney also should look at whether a whole host of ancillary, but still very important, issues are in play, such as whether the campaign is likely to be distributed through proprietary social media sites, or is to be directed at children, or involves endorsements or testimonials, or affects privacy rights or data security.
These kinds of issues are particularly tricky under current law.
You also mentioned that companies are using advertising law as a weapon against competitors. How so?
When we discuss an ad clearance, we are talking defense. Yet, litigation in this area is increasingly being viewed as an offensive weapon, as well. Companies today are more sensitive to the value of their intellectual property and the potential to exploit it to their advantage against their competitors.
Whereas in the past, litigation was typically filed over only egregious conduct — an outright lie about another’s product — now there are an increasing number of lawsuits over more nuanced issues, such as whether implied claims about the superiority of another product’s performance are overreaching, or even whether too much of another’s trademark is used.
Underlying these lawsuits is the notion that the plaintiff company sees litigation as a worthwhile avenue for improving its competitive positions over competitors. Turning back to the issue of defense, the prospect of such litigation obviously brings into better focus the importance of conducting a thorough ad clearance up front.
John Greenberg is chair of the Intellectual Property and Advertising Law practices at The Stolar Partnership LLP. Reach him at (314) 641-5199 or [email protected].
