We love a good March Madness legal blog (see here and here and here) and NAD gave us some great fodder this month deciding a case between two large daily fantasy sports league websites. This one wasn’t exactly an upset like so many of the games this year leading to the Sweet 16. DraftKings claimed it was the “largest US-based destination for daily fantasy sports.” FanDuel cried foul. There was no dispute that FanDuel is larger by a significant margin. The issue was whether the company was US or non-US based, the key factor which would render the claim either literally true or literally false. This case is a riff on Made in USA analysis. Instead of focusing on where a good is manufactured, including its component parts, this case looked to the right definition for determining where a corporation is based. The NAD noted that consumers “often care very much about the domestic nature of products that they purchase, and such sentiments are likely to also be felt about services that they patronize. For example, for consumers concerned about unemployment in the United States, the fact that a competing company’s labor force resides in another country may be quite important when deciding which company’s website to patronize.” As an aside, we are not so sure there are consumers who would base a purchase decision on where key executives sit or where key corporate decision are made, as opposed to where a company’s employees reside. That said, there is certainly an advantage in claiming to be the largest or No. 1, as it may well convey a message that a company has passed the test by rising to the top in terms of market share. And it is not unusual for a company to try to create a category in which it can be the champion. NAD said such a claim is particularly impactful in this case because “consumers are attracted to ‘larger’ daily fantasy sports websites because they have larger pools of players and prizes.”
Continue Reading Fantasy League Competitors Battle on the NAD Court for Decision Over Who Can Claim “Largest US-Based Website”
In a World Where Advertising is Shown in Movie Theatres…
It used to be that when you went to the movies you would try to get there a little early to catch all the trailers. But if you got there too early there would be that awkward time in a half-lit movie theatre with the folks you were with (and maybe your cellphone) waiting for everything to start. In recent years the movie theatres have helped us out by having content on the screen all the time. Of course that content was mostly advertising, and it turns out that someone was making that content. Actually, according to a recent complaint filed by the Antitrust Division of the Department of Justice, just two firms accounted for this content on nearly 88% of all movie screens in the country: National CineMedia, which is majority owned by the three largest exhibitors in the US, and Screenvision, which is partially owned by the fourth largest exhibitor. This past spring, NCM, which is on 51% of all movie screens in the US agreed to buy Screenvision. The Department of Justice was not amused, and filed a complaint this past week to block the deal.
Continue Reading In a World Where Advertising is Shown in Movie Theatres…
Ouch, Treble Damages in False Advertising Cases?
This blog reports frequently on the troubles 
marketers get into with the FTC, State AGs, the NAD, under the Lanham Act, or from class actions based on making allegedly false statements about their products or their competitors’ products. A recent $113 million jury verdict in Texas reminds us that the antitrust laws can come into play as well for such conduct, if an actor with monopoly or market power can be said to be unlawfully excluding its rivals by its advertising or marketing techniques.
Retractable Technologies (“Retractable”) developed a disposable retractable point or “safety” syringe designed to reduce the risk of accidental needle sticks for health care workers and to eliminate the possibility that syringes would be reused. Among other things, these features would help reduce the risk that health care workers would be exposed to the HIV virus and that used syringes would be re-used for illegal drug use. Becton Dickinson (“BD”) possessed a dominant share of the existing conventional disposable syringe market. In response to Retractable’s introduction of the safety syringe, BD introduced its own safety syringe. Litigation involving claims of patent infringement, monopolization, restraint of trade, and false advertising ensued.
Continue Reading Ouch, Treble Damages in False Advertising Cases?
Amazon Takes a Bite Out of Apple:Federal Judge Dismisses False Advertising Claim against Amazon’s “Appstore”
Though the holiday gift-giving battle between Apple’s iPad and Amazon’s Kindle may have quieted recently, the ongoing legal war between the two technology giants continues. Last week, Amazon.com Inc. scored an opening round victory when a California federal judge granted its motion for partial summary judgment, dismissing Apple’s false advertising claim against the online retailer.
Lying Is Protected Speech: What Does This Mean For Advertisers?
Did you hear the news? The Supreme Court has ruled that lies have First Amendment protection.
I’m not just talking about little white lies, or half-truths, or artful omissions – I’m talking about great big whoppers, like claiming at a public meeting that you were awarded the Congressional Medal of Honor when you were never
First Amendment Challenge Grounded
It’s vacation time, and while some of you may be getting in the car and “heading downy-ocean, ” others will be flying to their destination. Based on a recent decision from the D.C. Circuit, you may have a better idea what the total cost of your flight will be. In 2011, the Department
Ferris Bueller’s Teacher Gets The Day (And More Off): Sues Over Endorsement Contract
A quick update on the endorsement contract wars. We previously blogged about a judge’s refusal to dismiss a breach of contract case involving a professional football players loss of an endorsement contract after making some controversial tweets about the death of Osama bin Laden. The judge in that case held that the Company needed to
Class Action Representative Hit With $1.4 Million In Defendant’s Attorneys’ Fees
On May 9, 2012, Raceway Ford, Inc. was awarded $1,468,380 in attorneys’ fees plus costs against 14 named class representative plaintiffs in an automobile retail sales contract backdating class action case.The defendant was able to obtain this award because the statute, under which the plaintiffs sued, the California Automobile Sales Finance Act, has a mutual
Fourth Circuit Revives Rosetta Stone’s Claims Against Google Over Its AdWords Program
In a closely watched battle, the Fourth Circuit breathed life back into Rosetta Stone Ltd.’s trademark infringement and dilution claims against Google, Incorporated stemming from its AdWords program. Google’s AdWords program allows advertisers to purchase “keywords” that trigger the advertiser’s ads when the keyword is entered as a search term in Google. In a series