Law.com Subscribers SAVE 30%
Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.
A Gala Day for Comparative Advertising
Given the expense and burden of resolving false advertising cases in federal court, the promise of an expedient and less expensive alternate forum invites attention. Adding to speed and thrift an assurance that ads will be assessed by experts in the field makes the forum more interesting still. What is this alluring avenue of adjudication? For 33 years, the National Advertising Division of the Better Business Bureau (NAD) has sought to provide just such a mechanism. Yet, even for long-time veterans of federal proceedings, the NAD may be terra incognita. One recent decision by the NAD, In re Distillerie Stock USA Ltd., NAD Case No. 4197 (June 2004), reveals both benefits and drawbacks of the forum, particularly in how some familiar yet some unique allocations of the burdens of proof can produce results both similar to and quite unlike those in federal court.
Distillerie Stock recently retained the well-known taste-testing service, Beverage Testing Institute (BTI), to conduct blind taste tests comparing its GranGala triple orange liqueur, the second best selling brand in the United States, with number one Grand Marnier and virtually all of the other premium orange liqueurs available in this country. (As reported in another recent NAD decision, In re Sidney Frank Importing Co. Inc., NAD Case No. 4016 (Feb. 2003), the BTI has achieved remarkable consistency in its taste tests, far exceeding what a cynic might dismiss as an inherently subjective subject.) In relevant part, the test showed a marked preference for margaritas mixed with GranGala liqueur over Grand Marnier, numerically ranked at 94 to 86. Stock promptly produced print advertising promoting the comparative product rankings. “We Came, We Mixed, We Won” announced one such promotional item that also reported the test score. Marnier Lapostolle and its U.S. distributor, Schieffelin, objected ' first threatening suit, but ultimately opting instead to mediate the matter before the NAD.
To commence a mediation, the challenger submits to the NAD a complaint, typically in the form of a letter, together with a required fee (currently $1500 for members and $2500 for nonmembers). The complaint can incorporate virtually any manner of evidence, but need not, and no particular level of formality is required. The advertiser then has at least 15 business days to respond. A further reply and surreply are permitted (each after 10 business days, subject to extensions). The parties can request a hearing, but one is not strictly required, and under NAD rules, the decision to hold a hearing is discretionary with the NAD. With or without a hearing, the NAD renders a decision, which it submits to the advertiser for comment (principally to indicate whether it will or will not comply with the NAD's rulings) before the decision is then published. Either party can appeal to the National Advertising Review Board. If the advertiser refuses to follow the NAD's recommendations, the NAD can refer the matter to the Federal Trade Commission.
This premium content is locked for Entertainment Law & Finance subscribers only
ENJOY UNLIMITED ACCESS TO THE SINGLE SOURCE OF OBJECTIVE LEGAL ANALYSIS, PRACTICAL INSIGHTS, AND NEWS IN ENTERTAINMENT LAW.
- Stay current on the latest information, rulings, regulations, and trends
- Includes practical, must-have information on copyrights, royalties, AI, and more
- Tap into expert guidance from top entertainment lawyers and experts
Already a have an account? Sign In Now Log In Now
For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Anti-Assignment Override Provisions
UCC Sections 9406(d) and 9408(a) are one of the most powerful, yet least understood, sections of the Uniform Commercial Code. On their face, they appear to override anti-assignment provisions in agreements that would limit the grant of a security interest. But do these sections really work?