Website disclosures, online brand protection, and much more in this edition of Advertising Law News & Analysis

5 min


Coast-to-Coast Harmony over Browsewrap Agreements

Website disclosures are a hot topic these days, writes Venable attorney Kimberly Culp in a recent post to the firm's advertising law blog. Although legal wrangling over website terms and conditions is not new, Culp writes, the law is far from settled. And organizations that ignore the evolving law in this area do so at their peril. One recent decision provides clarity, at least in California, on how websites should present "browsewrap" agreements.

Read Culp's blog post to learn why companies that have taken the time to draft "terms of use" must now put in additional effort to make those agreements enforceable.

Read the opinion in Long v. Provide Commerce here.

Don't Let Massive New Container Requirement Sink Your Shipping

In 2014, the International Maritime Organization amended the International Conventions for the Safety of Life at Sea to require that a packed container's gross mass be verified prior to stowage aboard a ship. Despite significant ambiguity about how individual member states will enforce it, the amendment takes effect on July 1.

In the May edition of Response magazine, Venable attorneys Jeffrey D. Knowles, Ashley W. Craig, and Elizabeth K. Lowe provide a guide to the new regulation and suggest that marketers and importers engage their common carriers to resolve questions and ensure compliance ahead of the deadline.

Read the column to learn what companies must do to ensure their loaded containers are not left sitting on the docks.

Online Brand Protection Is Not One-Dimensional

Whether selling counterfeit goods on popular e-commerce platforms or dealing in trade secrets and stolen intellectual property through the anonymity of the "dark Web," infringers have multiple ways to maximize profits while minimizing manufacturing costs and risk of capture.

Brand protection requires more foresight and vigilance than ever, write Venable partners Jeffrey D. Knowles, Marcella Ballard, and Justin E. Pierce in the May edition of Electronic Retailer magazine. In the article, they outline noteworthy brand protection trends and strategies for marketers.

Read the full article to learn about emergent brand protection threats and strategies marketers can employ to thwart them.

TCPA Plaintiffs Must "Actually Receive" a Rule 68 Offer

Earlier this year, the Supreme Court ruled in Campbell-Ewald v. Gomez that merely making an offer to provide full relief under Rule 68 does not automatically moot a plaintiff's Telephone Consumer Protection Act (TCPA) claim. However, the decision left open whether making efforts to tender the offer to a plaintiff, such as placing the funds in an escrow account, would moot the plaintiff's claims. In a recent post to the firm's advertising blog, Venable attorneys Daniel S. Blynn and Samuel D. Boro write that thanks to the Ninth Circuit's recent decision in Chen v. Allstate, telemarketers now have clearer guidance on what must occur to moot plaintiffs' claims.

Read the full blog post to learn how Allstate's offer fell short and what telemarketers must do to ensure that offers of complete relief will moot TCPA claims.

Read the Ninth Circuit's opinion in Chen v. Allstate.

Review a list of recent TCPA class actions compiled by Venable.

DTSA Signed into Law, Now It's Time to Prepare

On May 11, 2016, President Obama signed the Defend Trade Secrets Act of 2016 (DTSA) into law, creating a federal cause of action for trade secret misappropriation whereby aggrieved employers may now seek injunctive relief (including civil seizure orders), compensatory damages, exemplary damages, and attorneys' fees arising from a party's willful and malicious misappropriation of trade secrets in federal court.

However, it is not all sunshine and roses for employers, write Venable attorneys Richard J. Frey and Carlos A. Becerra in a recent post to the firm's Trade Secrets and Transitions blog. DTSA includes a carveout for certain types of whistleblowers, and employers are required to provide notice of this immunity in their relevant agreements and policies.

Read the full blog post to learn what rights employers forfeit by failing to comply with DTSA's notification requirements.

Read the full text of DTSA.

Upcoming Events:

COMPLY2016 Conference

June 7 | New York, NY

COMPLY brings together compliance professionals, marketing executives, leading advertising lawyers, and contact center operators from top brands who want to ensure their efforts to reach consumers are compliant. This conference is a jam-packed day focused on compliance, with lessons from federal and state regulatory agencies, marketing visionaries, and industry experts. Po Yi, Venable partner, will moderate "Playing to Win in the Highly Compliant World of Credit Card Marketing," a session on how companies maximize marketing to achieve card member growth without drawing attention from the regulators.

Internet Retailer Conference and Exhibition

June 7-10 | Chicago, IL

E-Commerce is evolving faster than ever. The Internet Retailer Conference & Exhibition (IRCE) provides you with a conference full of industry experts and unrivaled agenda content, an exhibit hall filled with the latest and greatest solution providers, and a community made for networking with thousands of like-minded industry peers. Be sure to visit Venable in booth 129 in the exhibit hall.

Click here to schedule a meeting with Venable during IRCE.

Click here to learn more about the conference and to register.

The CFPB's New Arbitration Clause Ban: How to Prepare Your Organization

June 15, 2016 | Webinar

Join Venable's CFPB team for a webinar offering practical discussion about what the CFPB's proposed arbitration clause ban means for companies and consumers. Venable attorneys Allyson B. Baker, John F. Cooney, Thomas E. Gilbertsen, Jonathan L. Pompan, and Peter S. Frechette ‎will review the current state of the rulemaking process, share their take on the Bureau's proposal from regulatory and litigation perspectives, and outline what you and your company need to know about what's ahead.

Participants are encouraged to engage in the conversation by submitting questions throughout the live event and will receive a copy of the presentation and other materials following the webinar.

Register and learn more here.

Food Marketing Institute 2016 Legal Conference

June 19-21 | Chicago, IL

Designed for the legal leadership of the retail and wholesale food industries, Food Marketing Institute's Legal Conference will bring together general counsel, corporate counsel, as well as other corporate executives involved with legal issues. Join Venable's Randal M. Shaheen as he discusses "Recent Trends in Food Litigation and Labeling" on June 20 at the Sofitel Chicago Water Tower.