Trade Regulation Tidbits

News, updates, and observations:

 Herbert Hovenkamp, antitrust law professor and author, has been elected as a fellow of the American Academy of Arts and Sciences, a prestigious international society composed of leading scientists, scholars, artists, business people, an public leaders. Hovenkamp is holder of the Ben and Dorothy Willie Chair at the University of Iowa and is co-author (with Philip E. Areeda) of the 20-volume landmark antitrust treatise, Antitrust Law: An Analysis of Antitrust Principles and their Application (Aspen Publishers). Hovenkamp is also co-author of two other treatises for Aspen Publishers—Fundamentals of Antitrust Law (with Philip E. Areeda) and IP and Antitrust: An Analysis of Antitrust Principles Applied to Intellectual Property Law (with Mark D. Janis and Mark A. Lemley). Among the 227 new fellows announced on April 30 are former Vice President Al Gore, former U.S. Supreme Court Justice Sandra Day O’Connor, New York Mayor Michael Bloomberg, and filmmaker Spike Lee.


 At a session entitled “Advertising Law: What Is It? What Do I Need to Know?” presented May 1 at the INTA annual meeting in Chicago, a panel of attorneys set out the steps to follow to avoid liability in advertising. These were helpful, if somewhat familiar: tell the truth; support your claims; determine the net impression of the ad; obtain network approval (if applicable); and get releases for music, text, photographs, other visuals. A particularly interesting point was made by Carla Michelotti, Executive Vice President and General Counsel of Leo Burnett. She said that the lawyer should be involved at both the beginning and the end of the production process. It is important to be involved at the earliest stage to ascertain the theme of the ad campaign and ensure it does not pose a legal risk. Otherwise, the advertiser may incur great production costs before the lawyer can put on the brakes. It is important to be involved at the end of the process, as well, because a slight change in the words or images can create a claim or cause a potential rights conflict.


 “Keyword” Internet searching is a hot topic among advertising and IP lawyers. Another session at the INTA meeting—“Muddy Waters: Evolving Law and Policy in Internet Advertising”—explored the issue of a company’s purchasing a competitor’s trademark as a keyword on a search engine in order to have a search for the trademark pull up the company’s ads. Lauren Fisher, Assistant General Counsel for Intellectual Property for AOL, indicated that there is no consensus about the concept of “use” of trademarks on the Internet, saying “the laws in the Second Circuit are completely different from the laws in the Ninth Circuit.” She said that, under the new Trademark Dilution Revision Act of 2006, the use of comparative trademarks is not dilution. Thus, facilitating such use cannot constitute dilution. Rose Hagan, Senior Trademark Counsel for Google, Inc., observed that her employer “sells ad space, not trademarks” and that the advertiser should be responsible for its ad text and keywords rather than the search engine. There was some discussion about AOL’s refusal to provide trademark owners with information about obvious infringers. The company would provide such information only pursuant to a court order or subpoena, according to Ms. Fisher.