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hashtagWhat if the influencer you had been following on Instagram—an influencer whose style choices you admired, and who supported social causes that you believed in—turned out to be…a robot?

This is what happened to followers of Lil Miquela, a 19-year old model from California who launched an Instagram account in 2016.  For the past two years, she’s been posting photos of herself in designer clothing, eating at trendy restaurants, and pitching beauty products.  Along the way, she managed to amass over a million followers.  Then, in mid-April, after getting hacked by a fellow influencer named Bermuda who refused to return her account unless she “[told] the world the truth”— Miquela revealed that she wasn’t human.  She is a CGI creation.  And so is Bermuda.
Continue Reading The Rise of CGI Influencers

paintballThere may come a time (but hopefully not) where you need to write a website disclaimer, email, Facebook post, whatever trying to dispel consumer confusion and head off an advertising lawsuit.  How might you do that?  Keep editing if your first draft looks something like this:  “We have learned that some customers are confused and think that we sell ABCompetitor’s Cool Toys.  Please take note that we are not related to ABCompetitor.”

Let’s see how this played out in a recent order issued by the Northern District of California in United Tactical Systems, LLC v. Real Action Paintball, Inc., Case No. 14-cv-04050-MEJ.

Continue Reading Do Not Shoot Yourself in the Foot by Making Admissions in Your Disclaimer

Kids say the darndest things, and California wants to make sure that when it comes to their online postings those kids get a do-over.  On January 2015, California law SB 568 entitled “Privacy Rights for California Minors in the Digital World” will go into effect, allowing minors to remove certain posted online content as well as restricting certain types of online advertising directed to minors.

We have previously discussed California (see posts) and its continued stance as a leader in data privacy legislation, and this is no different.  California’s enactment of SB 568 focuses on expanding the online safeguards that the FTC put in place for minors with COPPA, as well as giving a nod to a topic of heavy debate in Europe—the right to be forgotten.Continue Reading California Enacts Law Protecting Minors’ Digital Privacy Rights

Most of us are familiar with the pleasant experience of an arranged date or a blind date: dining under the romantic glow of the Golden Arches, learning about a day in the life of Muffin, her pure-bred Persian, or perhaps “going Dutch” on the check when all the fun finally ends.  Add to the mix online dating sites—virtual exchanges of love interests, complete with lists of mostly aspirational hobbies, and yes, user photos from ten years and twenty pounds ago.  When you sign up for an online dating service, you expect these subtle (or not so subtle) misrepresentations from other users.  What you don’t expect is the dating service doing the same—for example, by sending flirtatious notes from made up profiles.  That’s exactly what the FTC alleged last week in its second Restore Online Shopper’s Confidence Act (“ROSCA”) case ever, in which the FTC settled with a dating site for posting fake user profiles in an effort to persuade customers to sign up for premium services.
Continue Reading In Second ROSCA Case, FTC Finds Dating Site Too Clingy

pinterest

Pinterest®, since it first appeared on the scene in 2010, has been the darling of crafty do-it-yourselfers (DIYs), ambitious brides-to-be, fitness aficionados, foodies, and anyone else interested in creating their own little portfolio of images carefully curated from sites around the Internet.  Pinterest has consistently presented itself as a tool that could be used by consumers for a natural, authentic experience, giving users full artistic and creative reign as they pinned images and designed boards.  In fact, Pinterest has been notorious for cracking down on advertisers who use its offerings in any sort of spammy way, including now prohibited “Pin It to Win It” contests.  The site has also received considerable attention for the thorny legal issues that are implicated by its “pin anything you want” philosophy, including copyright, trademark and right of publicity issues.Continue Reading From Art Gallery to Billboard – The Game-Changing Presence of Promoted Pins on Pinterest®

We’re all pretty used to seeing sweepstakes that require entrants to “like” an advertiser’s or app’s Facebook® page in order to enter—they’re probably the most common type of promotion on Facebook.  Many marketers require consumers to “like” an application’s Page as a condition of entry into a sweepstakes or contest, in order to receive coupons or other rewards, or in order to watch a video or some other type of content.  Advertisers like to do this because in exchange for offering consumers benefits for “liking” their applications’ Pages, the advertisers obtain a guaranteed base of Facebook fans and extend their brand’s reach on Facebook.

But, in a few months, as a result of recent changes to Facebook’s Platform Policy, these examples of “like-gating” will no longer be kosher on the Facebook platform.  Facebook’s revised Platform Policy, updated August 7, 2014, states that developers of Facebook applications may “[o]nly incentivize a person to log into your app, like your app’s Page, enter a promotion on your app’s Page, or check-in at a place.”  The revised policy goes on to state that “Effective November 5th, 2014, you may no longer incentivize people to like your app’s Page.”

Facebook provides these examples of what is no longer allowed:

FacebookContinue Reading Facebook Changes the Rules Again: The Sally Field Principle of “Likes” on Social Media

Zack (Danger) Brown recently made headlines for his Kickstarter® Campaign, which was featured in CNN.com, The Washington Post, and The New Yorker as well as on Good Morning America (I guess TV stars eat carbs after all).  Unlike other entrepreneurs on the popular crowdfunding platform, who use Kickstarter to launch a business idea or concept, Brown has been raising money for … potato salad.  And not a special family recipe for a potato salad, either – according to Brown, this will be his first potato salad and “[i]t might not be that good.”  The campaign has gone viral, and people have given upwards of $42,000 (the amount is still growing) – a sum that should more than cover the bag of Idaho spuds, mayonnaise, chives, and other ingredients to make the picnic staple.

potatosalad

Brown’s promised deliverables have evolved as he has acquired more and more money.  Now, folks who contribute $20 are enticed by the following:  “Receive a potato-salad themed haiku written by me, your name carved into a potato that will be used in the potato salad, a signed jar of mayonnaise, the potato salad recipe, hang out in the kitchen with me while I make the potato salad, choose a potato-salad-appropriate ingredient to add to the potato salad, receive a bite of the potato salad, a photo of me making the potato salad, a ‘thank you’ posted to our website and I will say your name out loud while making the potato salad.”  Regardless of whatever spud-themed poetry Brown writes, according to the Kickstarter Terms of Use, Brown has to follow through on what he promises to backers.  And a recent proceeding by the Washington Attorney General suggests that Brown had better get ready to wax poetic about that most soulful of tubers, the potato. 
Continue Reading Seeking Backers for That Kickstarter Campaign You’re Cooking Up? Better Make It One Heck Of A Dish…

James Bond MartiniJames Bond preferred his martinis “shaken, not stirred” but what about Greek yogurt with fruit at the bottom?  Well, according to the NAD, stirred or not stirred are both equally acceptable (no word on “shaken”).  That was only one of several questions NAD resolved in a challenge by Chobani to a Yoplait Greek Yogurt taste test commercial.

Chobani, Inc. (“Chobani”) challenged several of General Mills, Inc.’s (“General Mills”) advertising claims that “nearly 2 out of 3 people agree—Yoplait Greek Blueberry tastes better than the leading Chobani” and “tastes better than the leading Chobani.”  To substantiate these claims, General Mills used a national taste test comparing Yoplait blended blueberry “Greek” Yogurt to Chobani’s blueberry fruit on the bottom yogurt. 
Continue Reading NAD Issues Split Decision in Greek Wrestling Match over Taste Test, Social Media and Providing Free Goods to Bloggers Issues

Katherine Heigl, a star of the television series Grey’s Anatomy and films like Knocked Up and 27 Dresses, recently made non-TMZ headlines when she sued drugstore chain Duane Reade for $6 million dollars for posting a photo of her to its Twitter and Facebook accounts, accompanied the text “Love a quick #DuaneReade run? Even @KatieHeigl can’t resist shopping #NYC’s favorite drugstore.” Here’s a copy of the Twitter post that has caused such a stir:

heigel

What’s the problem, you ask? In a time when celebrities regularly post photos of their daily lives to public Twitter accounts and selfies dominate the social media space, what’s the big deal with a company posting a paparazzi photo of a celebrity that no doubt was already available in the public domain? The problem, according to Ms. Heigl, is that Duane Reade used the photograph for its own commercial advertising without her permission, exploiting Ms. Heigl’s celebrity status for its own commercial gain.  This conduct, according to Ms. Heigl’s complaint, is a violation of the Lanham Act, her right of privacy and publicity under New York Civil Rights Law, and New York unfair competition.Continue Reading What’s in a Name? Dollars – At Least When You’re A Celebrity

ColeHaanOn March 20, 2014, the FTC issued a closing letter to Cole Haan that will affect all kinds of advertisers (and advertisements) on social media.  In particular, it will impact the way that brands interact with users on Pinterest and tell their users to use hashtags in contests and other types of promotions.  So advertisers, #listenup!

The FTC took issue with the shoemaker’s “Wandering Sole” contest on Pinterest, which called for people to create Pinterest boards with images of five Cole Haan shoes, along with pictures of the contestants’ “favorite places to wander.”  Whoever posted the most creative entry would win a $1,000 shopping spree.  Cole Haan told users to include the hashtag “#WanderingSole” with their photos, but—importantly—it didn’t tell participants they also needed to make it clear that they posted the pins in order to enter a contest.

The FTC was concerned because this material connection (the link between the pin and the contest entry) was not disclosed in entrants’ posts.  The letter states that “entry into a contest to receive a significant prize in exchange for endorsing a product through social media constitutes a material connection that would not reasonably be expected by viewers of the endorsement.”   The FTC observed that the participants’ pins featuring Cole Haan products were endorsements of the company’s products, and the #WanderingSole hashtag ineffectively communicated the financial incentive—a material connection—between Cole Haan and the entrant.

Continue Reading FTC Gives Cole Haan’s Contest the #Boot