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.
With an increase in both the number of trademark applications and fraudulent trademark applications over the last several years, the USPTO has recently instituted several additional filing requirements, increased most filing fees, and added new fee categories.
Chair of the firm's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group Andrew Lustigman will participate in a panel entitled “A New Era of Endorsements, Testimonials, and Consumer Reviews: Navigating the FTC’s Final Rule and Emerging Areas of Risk for Enforcement and Penalties” as part of ACI’s 8th Annual Legal, Regulatory, and Compliance Forum on Advertising Claims Substantiation on February 6, 2025, at 1:00 P.M. at the New York City Bar Association in NYC.
Following the lead of California, which passed the first comprehensive privacy legislation in the United States in 2018, many states have now enacted their own laws governing the collection and use of personal data. In addition to California, a comprehensive privacy law is effective in the following states as of 2024: Colorado, Connecticut, Montana, Oregon, Texas, Utah, and Virginia. New laws go into effect in 2025 in Delaware, Iowa, Maryland, Minnesota, Nebraska, New Hampshire, New Jersey, and Tennessee. Indiana, Kentucky, and Rhode Island have also passed comprehensive privacy laws that go into effect in 2026. There are active bills in the legislatures of Michigan, Ohio, and Pennsylvania. The laws apply to businesses that collect personal information from consumers in those states regardless of where the business is located.
Given consumers' increasing reliance on customer reviews for online purchases combined with the increasing use of AI, we can expect more regulatory (and likely plaintiff’s attorney) enforcement combating false or manipulated consumer reviews. Recognizing these trends, the FTC’s recently-effective Final Rule on the Use of Consumer Reviews and Testimonials focuses heavily on fake reviews and negative review suppression. Indeed, the Final Rule explicitly bans publishing reviews and testimonials from someone who does not exist, such as AI-generated reviews, fictional people and those with no actual experience with a business’s products or services. The rule also bars businesses from suppressing negative reviews or misrepresenting that the reviews represent all or most of the reviews submitted if negative reviews have been suppressed.
As the world awaits the next term of Donald Trump, marketers and advertisers are contemplating the potential changes in consumer protection regulations. While certain aspects of federal regulation and enforcement may have been relaxed during Trump’s first term, the Federal Trade Commission’s (“FTC”) consumer protection enforcement mandate is expected to remain a significant priority, although the pathways may differ significantly from the Kahn Commission.
On January 27, 2025, there will be a significant legal change that will fundamentally affect the operations of all lead generators and those who rely on them. Many businesses are aware that the Telephone Consumer Protection Act (TCPA) is a federal law that requires prior express written consent in order to send auto-dialed calls, pre-recorded "robocalls" or mass promotional SMS texts. The TCPA also applies to AI-generated calls. But 27 days into the new year, the FCC will implement a new requirement that prior express written consent must be obtained on a "one-to-one" basis.
2024 has been another huge year for automatic renewal laws and rules, both on the state and federal levels. A number of states, including Utah, Virginia, South Carolina, Tennessee, Minnesota, Illinois, and California, have introduced new laws or updated existing ones to include a range of different requirements, including those related to automatic renewal enrollment and cancellation pathways. These new and updated states laws, some of which go into effect in 2025, have added to the ever-evolving web of state laws that govern automatic renewals for residents of those specific states.
On November 18, 2024, the United States Patent and Trademark Office (“USPTO”) officially published its Final Rule for filing and maintenance fee increases for 2025 (the “Final Rule”). In so doing, the USPTO added new fee categories and increased many of its existing fees. The purpose of the changes and increases, according to the Final Rule outlining the same, is to “provide the agency with sufficient financial resources to facilitate the effective administration of the U.S. trademark system.” It is noted in the Final Rule that many of the fees have not increased for over 20 years. The fees discussed below are the USPTO fees only. Of course, the fees mentioned below are just the government fees, and legal fees are extra.
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 will present a myLawCLE webinar entitled “Sweepstakes, Contests, and Giveaways: Mastering the Legal and Regulatory Landscape” on December 3 from 1:00 – 3:10 P.M. (EST).