The Advertising Law Blog provides commentary and news on developing legal issues in advertising, promotional marketing, Internet, and privacy law. This blog is sponsored by the Advertising, Marketing & Promotions group at Olshan. The practice is geared to servicing the needs of the advertising, promotional marketing, and digital industries with a commitment to providing personal, efficient and effective legal service.

Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group, and associate Morgan Spina published an article in New York Law Journal entitled “FTC's New 'Click To Cancel' Rule Is Here, But Will It Survive Judicial Challenge?.” In the article, Andy and Morgan discuss how automatic renewals for services—or “negative options”—continue to face amended laws. However, this has resulted in a patchwork of various regulations at the state and federal level, making absolute compliance a difficult proposition for companies.

As online sales take over the retail market, it is essential to show strong trademark use of the marks on retail websites to maintain brand identity and support the trademark filings. There are specific requirements in the way one uses the mark on a website so that the USPTO will accept it as trademark use. For trademark owners that sell products as well as run a retail store, there can be applications for the online retail store services and also for the goods sold, assuming those goods are branded with the trademark owner’s trademark. An online retail store that sells the brands of others and not its own brand would not be able to use the website in support of an application for goods. 

Olshan Frome Wolosky LLP today announced that 35 attorneys across all of the firm’s practices have been selected to the 2024 New York Metro Super Lawyers® list. Twenty-seven lawyers have been named as “Super Lawyers” and eight have been named as “Rising Stars.” While on average no greater than five percent of the total lawyers in each state are selected for the Super Lawyers lists, thirty-eight percent of Olshan’s lawyers have been selected for this honor in 2024.

Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotion's Group and Co-Chair of the firm’s Brand Management & Protection Group, was quoted in a Bloomberg Law article (subscription required) on the legality of the recent sweepstakes launched by Elon Musk’s super political action committee America PAC, which is awarding a daily prize of $1 million to a swing state voter.

Highlighting the increasing regulatory focus on paid subscription cancellation, the Federal Trade Commission has taken action against Care.com, alleging that the company systematically deceived users as to the wages and jobs information they could access on Care.com, and failed to provide a simple method for users to cancel their paid memberships. As part of its settlement, Care has agreed to pay $8.5 million to the FTC.

Online games company loses motion based on unconscionability

Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group, and Claudia Dubón, a partner in the firm’s Corporate/Securities Group, published an article in New York Law Journal entitled “New Cosmetic Regulations Dramatically Changing the Compliance Landscape.” In the article, Andy and Claudia discuss the cosmetics labeling compliance requirements in the Modernization of Cosmetics Regulation Act of 2022 (MoCRA). Several provisions took effect on July 1, including requiring facilities that process or manufacture cosmetic products to register with the FDA. The product label must also include the contact information of the responsible person(s) for facilitating the reporting of adverse events. “MoCRA is arguably the most significant expansion of the FDA’s regulation of cosmetic products in decades,” Andy and Claudia explain. “These requirements will apply to manufacturers and marketers (among other various parties in the cosmetic space), who will need to carefully consider their and their suppliers’ compliance obligations under these new regulatory requirements.” They add that more MoCRA regulations may be forthcoming, including good manufacturing practices (GMPs) for disclosing fragrance allergens in cosmetic product labeling and establishing and requiring standardized testing methods for detecting asbestos in talc-containing cosmetics. “Given the substantial and expanding compliance obligations, parties in the cosmetic space will need to be mindful of the enhanced regulation requirements to maintain compliance moving forward,” Andy and Claudia write.

Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group, and associate Morgan Spina published an article in Bloomberg Law entitled “FTC’s Focus on Subscriptions Protects Consumers: Legal Insight.” In the article, Andy and Morgan provide a comprehensive overview of the complexities surrounding automatic renewal subscriptions, a payment model increasingly used by e-commerce businesses. The article offers critical advice for companies looking to navigate the evolving regulatory landscape, particularly in light of recent state and federal developments. Andy and Morgan highlight key areas of focus, including the importance of clear enrollment terms, streamlined cancellation processes and the implications of the FTC’s recent actions against major players like Amazon and Adobe. "Companies should ensure customers aren’t forced to reject a barrage of offers before the cancellation request is processed or are somehow taken out of the cancellation path if they are considering a save offer," they advise. Andy and Morgan emphasize that businesses must stay ahead of regulatory changes to avoid costly litigation and maintain consumer trust.

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