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Advertising, Marketing & Branding

Kaye Scholer LLP advises and represents clients in connection with the advertising, marketing and sale of consumer products and services, and the promotion of corporate and celebrity brands.

This is done in the following key areas:

  • Deceptive Advertising
  • Comparative Advertising
  • Claims Substantiation
  • Clearance
  • Contest and Sweepstakes Promotions
  • Product Placements and Integrations
  • Warranties
  • Consumer Product Safety
  • Children's Advertising
  • Copyright, Trademark and other Intellectual Property Matters
  • Mail Order and e-Commerce
  • Direct, Viral, Mobile, e-Mail, Guerilla and Word of Mouth Marketing
  • Privacy and Data Security
  • Rebates, Gift Certificates and Stored Value
  • Licensing
  • Legislation and Lobbying

Our Advertising practice is emerging as one of the top dynamic, forward-thinking advertising law practices addressing both United States and European Union issues. The Advertising practice includes lawyers located in our Los Angeles, New York, Washington, D.C. and London offices. Our lawyers have held senior positions at the FTC, FDA, and Patent and Trademark Office and have served as senior in-house counsel at leading companies. We invest the time needed to learn about our clients, their related business goals, creative preferences and operational styles. We cover areas as diverse as truth-in-advertising, regulatory counsel and defense, intellectual property, defamation, invasion of privacy, endorsements, testimonials and recommendation marketing, rights of advertisers pursuant to collective bargaining agreements with performing unions, e-commerce, manufacturing, licensing, labeling, packaging, distribution, product safety and recalls, contractual transactions, mergers and acquisitions and joint ventures . . . all phases from concept to consumer use.

There is no longer a clear line between advertising and entertainment or between traditional and new media. Our Advertising practice draws upon the firm's substantial experience in advertising, entertainment and technology to take a multi-disciplinary approach to addressing issues and developing solutions. The firm's experience spans all aspects of advertising, entertainment, technology and media law.

Our clients include name-brand advertisers, advertising agencies, production companies, advertising agency networks, media companies, online content and commerce sites and distribution networks, interactive game publishers, technology companies, telecommunications providers, film studios, book publishers, television networks, leading trade associations, authors, musicians and celebrities, as well as retailers and manufacturers of computers, food and beverages, toys, apparel, software, pharmaceuticals, and other consumer products.

We work closely with our clients in the development and review of advertising and promotional materials. We advise clients on multimedia and virtual marketing campaigns that involve compliance with the CAN-SPAM Act, state anti-spam laws, applicable laws regarding collection and use of consumer information, FTC and state government false, deceptive or unfair advertising requirements and issues regarding use of consumer generated content and consumer participation campaigns.

We advise clients on domain name registration and protection, and litigating such disputes when they arise. We assist clients in clearing and registering trademarks, conducting copyright searches and chain-of-title reviews, registering copyrights and prosecuting and defending trademark, copyright, patent, privacy, publicity and trade secret infringement actions.

Our Advertising group works closely with our e-Commerce and Intellectual Property & Technology Transactions groups to counsel clients on structuring their policies and practices to address increased privacy and data security concerns and protect against liability. We also work with clients of all sizes in a multitude of industries to assist with critical e-business opportunities. Our related False Advertising practice group provides both defensive and offensive services before courts, regulatory bodies and industry self-regulation organizations. In addition, our Products Liability group is the only such practice in the country named by National Law Journal to its prestigious Defense Hot List for the last three years running.

In conjunction with our Entertainment practice group, our Advertising practice works with both our media company and advertiser clients to structure product placement and integration and other branded entertainment deals and to license entertainment, consumer, music, sports and celebrity brands and assets for merchandise licensing, location-based entertainment, co-promotional arrangements, tie-ins, sponsorships and other brand extension opportunities. We also assist clients in structuring celebrity endorsements and spokesperson arrangements and engagement of talent for commercials.

Working with our Corporate practice group, our Advertising practice has helped structure mergers and acquisitions in the advertising industry and debt and equity financing of advertising, media and technology companies. Our Advertising practice group also assists our Corporate practice group in addressing privacy, data security, regulatory and intellectual property matters in connection with corporate transactions and financings.

As leaders in the field of advertising, our attorneys advise leading trade organizations such as Promax/BDA and the Association of Interactive Electronic Marketers, teach or have taught at leading universities, publish articles in trade and legal periodicals and frequently speak at industry events including the Promotional Marketing Association, American Conference Institute's Regulatory Summit and the Annual National Forum on Advertising Law, Practicing Lawyer's International seminars, the Gamer Technology Law Conference from Law Seminars International, New York State Bar Association Entertainment, Sports and Arts Law Section and Digital Media Wire. We are dedicated to assisting our clients anticipate change and conform to a constantly evolving marketplace.

Contact information

Aton Arbisser – Los Angeles Office
Telephone: (310) 788-1015

Representative Advertising, Marketing and Branding experience includes

  • Sweepstakes and contests, including complex promotions involving user generated content, audience voting, interactivity, etc.
  • Character, trademark, music, photo and clip licensing for advertising.
  • Agreements to engage performers, models, celebrities and athletes for commercials, print, personal appearances and endorsements.
  • Engagement agreements for ad, branding, marketing and promotional services agencies, PR firms and special event planners.
  • Create forms and policies and procedures for agencies.
  • Work with creative and marketing executives to develop legal-compliant style guides, trademark and marketing materials usage agreements for distributors and resellers and ongoing education and compliance programs.
  • Ad copy clearance and compliance review.
  • Counsel regarding claims substantiating comparative advertising, false deceptive and unfair advertising and puffery.
  • Commercial speech and First Amendment analysis.
  • Counsel regarding advertising of gambling and gaming.
  • Talent union and guild issues and compliance.
  • Co-promotion, co-branding, co-marketing and cross linking agreements.
  • Media buy and barter agreements and engagements of media planners and buyers.
  • Ad sales agreements for and with cable networks, independent TV stations, Web Sites, interactive game publishers, portals and mobile media.
  • Sponsorship agreements of all kinds including concerts, events, charities, sports, adver-games, NASCAR teams, etc.
  • Counsel regarding direct marketing legal issues (including Deceptive Mail Prevention and Enforcement Act, Telephone Consumer Protection Act and FCC rules, FTC Do Not Call registry and telemarketing rules, spam issues, state unsolicited fax and proposed do not mail laws).
  • Counsel clients regarding UT and MI non-solicitation registries for minors.
  • Advise regarding SMS/mobile interactivity (including TCPA, Can Spam and pay to play lottery/sweepstakes laws).
  • Alcoholic beverage sponsorship requirements.
  • Children's advertising requirements and response to CARU complaints.
  • Advertising and IP liability insurance issues.
  • Engagements of production companies.
  • Coupon, gift certificate, gift card, stored value card and rebate regulatory compliance.
  • FCC, FDA, FTC and CPSC regulatory compliance issues and defense of investigations and civil penalty cases.
  • BATF alcoholic beverage label clearance.
  • FDA label and labeling compliance reviews.
  • Buzz, street, word-of-mouth and viral advertising risk reduction counsel.
  • Counsel regarding recommendation marketing programs.
  • Counsel direct response video distributor regarding continuity programs, prenotification negative option rule, and the unordered merchandise statute.
  • Arrangements with charitable organizations and cause-based marketing initiatives.
  • Counsel regarding use of testimonials.
  • Advise clients regarding recalls and corrective advertising.
  • Draft agreements and policies and procedures regarding direct sales programs for cosmetics and consumer products companies.
  • Infomercial production, clearance and distribution.
  • Proper use of notices and disclaimers, including in online advertising.
  • Representation before Congress in lobbying campaigns.

Representative Entertainment, Media and Music experience includes

  • Options for and acquisitions of literary properties.
  • Life rights agreements.
  • Production and post-production services agreements.
  • Voice-over and above and below the line talent agreements.
  • Script, story board and final av clearance.
  • Ad sales agreements for cable networks and independent stations.
  • Content license agreements of all sorts.
  • Product placement and branded entertainment agreements and issues, including sponsor-produced programming with associated ad buys.
  • Counsel regarding federal regulations regarding paid product placement and with respect to children's programming.
  • Music master use, mechanical and synchronization licenses, agreements with performance rights societies and compulsory sound recording license compliance.
  • Music composer agreements.
  • Created some of the first license agreements with record labels, music publishers and performance rights societies for interactive, Internet and wireless media.
  • E&O insurance issues.

Representative Intellectual Property, Privacy and Data Security experience includes

  • Chain-of-title review, due diligence and clean-up.
  • Copyright and Trademark clearance, registrations and infringement matters.
  • Work-for-hire and invention rights assignment agreements.
  • License agreements of all sorts.
  • Assignments and quit claims.
  • Counsel with respect to on-line and off-line privacy issues, including California law, COPPA, HIPAA and Gramm-Leah-Bliley.
  • Instruct companies on how to create and maintain copyright, trademark and patent registration, administration and protection programs and policies; option and rights tracking systems; IP audits; and procedures to protect trade secrets and confidential information and avoid third party infringement.
  • Counsel client regarding how to minimize risk of infringement claims in creating trade dress for pet food packaging that plays off of elements associated with breakfast cereals.
  • Counsel regarding scope of parody and other fair use issues.
  • Created and operated on-Line and off-Line anti-piracy programs that have resulted in changes to ISP and eBay policies and procedures, arrests and prosecutions of intentional and chronic offenders, and the reform of "innocent" fan clubs and Web Sites.
  • Develop limited, revocable licenses, and policies and procedures, for use of content on fan sites.
  • Work with investigators, litigators and law enforcement to build cases against infringers and pirates.
  • Create vendor confidentiality, IP protection, IT security and conflicts of interest policies and codes of conduct.
  • Counsel entertainment Web Sites and a well known entertainment cable channel on scope of lst Amendment news and public interest fair use.
  • Inter-company intellectual property agreements.

Representative Internet, Mobile Media and eCommerce experience includes

  • Web Site terms of use, end user license agreements, user codes of conduct and related policies and forms.
  • Privacy and security policies and regulatory compliance.
  • Counsel regarding click-wrap and browse-wrap enforceability.
  • Policies and procedures to comply with the Child On-Line Privacy Protection Act, and CAN SPAM, to create complaint programs that qualify for the Digital Millennium Copyright Act "safe harbor" and with regard other laws and regulations.
  • eCommerce legal compliance including return policies, Mail Order Rule and sales tax issues.
  • Counsel e-tailers regarding recurring billing and continuity payment programs, Fair Billing Credit Act, and Electronic Funds Transfer Act.
  • eCommerce fulfillment and payment processing arrangements.
  • eCommerce affiliate agreements.
  • On-Line community forum policies and user posting submission agreements and counsel regarding maintaining CDA immunity.
  • Internet radio and podcasting rights clearance and compliance.
  • Digital music distribution (downloads and streaming) arrangements.
  • Negotiated early agreements with SAG, WGA and DGA for made-for-Internet content, which agreements were the forerunner of the current standard agreements. Negotiate waivers and variances to the standard agreements.
  • Work with insurance brokers to obtain broad Web Site and multimedia insurance coverage.
  • Linking agreements and policies.
  • Advise single sponsor adver-tainment Web Sites on commercial speech restrictions and scope of First Amendment protection regarding various proposed programming.
  • Counsel game / contest Web Sites, targeting young adults and children for marketing purposes, regarding structure and legal compliance, including privacy, safety and marketing issues.
  • Counsel on-line auction Web Sites on how to structure merely as a "venue" for third party transactions and thereby attempt to avoid state regulations of auctioneers.
  • Help structure B2B exchange sites to minimize operator liability.
  • Advise investment information Web Site on notices and disclaimers to minimize liability.
  • Counsel regarding guarding against hackers, viruses, bomb, worms, Easter eggs, bots, spiders, scrapers, etc. and enforcement against infringers and regarding linking, framing and metatags.
  • On-Line sweepstakes and contest rules, procedures and regulatory compliance.
  • Domain name disputes and acquisitions (usually though a third-party front).
  • Network service provider, site hosting and operator, co-location, edge network, distributed network, IP transit, content management and data center agreements.
  • Wireless network content distribution agreements.
  • Advise major cellular telco regarding a variety of content and related issues.
  • Advise mobile media music distribution company.
  • Placement and distribution agreements with portals, ISPs and broadband providers.
  • Co-branded Web Site agreements and co-promotion arrangements.
  • On-Line advertising agreements of all kinds, including barter.
  • Content syndication arrangements.
  • Application Service Provider ("ASP") agreements.
  • Structure on-line pay-per-view content arrangements.
  • Review and revise corporate Internet, data security, privacy, and computer and email use policies and best practices, including employee and vendor agreements.
  • Counsel client on compliance with data breach disclosure laws following security breach.
  • Counsel with regard to the Electronic Communications Privacy Act / Stored Communications Act.
  • Advise clients regarding CARU Privacy "safe harbor" certification and other Web Site privacy certification programs.
  • Counsel regarding use of competitor marks as paid search terms.

Representative Merchandising, Publishing and Consumer Products experience includes

  • Developed form consumer products merchandise licensing, publishing, premium promotions, licensing agent and/or manufacturing agreements for multiple companies. Negotiate and document these types of agreements on both sides.
  • Master toy license agreements.
  • Advise regarding restriction on transshipments, scope of permitted distribution channels, the gray market and the Treaty of Rome.
  • Served as entertainment and merchandising expert on studios outside litigation team regarding suit regarding merchandise rights and participations.
  • Development of "no sweatshop" and best practices clauses and policies.
  • Work with local counsel regarding application of foreign law (e.g., Section 89b German Commercial Code requiring post-term compensation to distributors, local labor laws, etc.).
  • Consignment and services agreements, distribution and sales representative agreements.
  • Warehousing and shipping agreements.
  • Publishing agreements (both writer and publisher side).
  • Writer collaboration and ghost writer agreements.
  • Comic book publishing agreements.
  • Location-based entertainment projects, including theme park rides and theme restaurants.
  • Branded retail store license arrangements.
  • Rights clearance, acquisition, and protection.
  • Represent apparel companies regarding the acquisition of celebrity names for product line, trademark issues and manufacturing and distribution arrangements.
  • Overseas manufacturing and import agreements for a variety of products, including regulated products.
  • Private label distribution agreements.
  • Product warranty matters.
  • Development and implementation of product safety and quality control recalls.
  • Toll manufacturing agreements.