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OBA Self-Regulatory Initiative Gets Boost from Yahoo! & Google

Back in 2009, Legal Bytes reported that a coalition of the major players in the online advertising industry had gotten together and issued self-regulatory principles concerning online behavioral advertising (Advertising Industry Collaboration Releases Self-Regulatory Online Behavioral Advertising Principles). These principles were and remain intended to create an industry self-policing mechanism that provides, among other things, discipline and disclosures to consumers concerning the use of personal information.

Amidst much activity and debate – the good, the bad and the ugly – the industry has moved forward, creating a Digital Advertising Alliance (“DAA”) (and website), and enlisting the aid of the Council of Better Business Bureaus to develop and implement an enforcement process, much like the process that has worked quite successfully in traditional advertising for well more than 30 years! By the way, for the record, I refer to online behavioral advertising (OBA) as “digital behavioral advertising” or “DBA,” since excluding mobile and wireless would be a mistake, and “online” conjures up images of “wired.”

In a major show of support for the self-regulatory initiative, both Google and Yahoo! have announced they will begin using the “forward i” icon (shown below), promulgated by the DAA for its behavioral advertising.

Aside from the obvious boost to the industry’s self-regulatory efforts, the uniformity will help lessen the likelihood of consumer confusions regarding industry practices across the web. The DAA icon will also serve as a live link, taking users to user-based tools that a consumer can use to modify the behavioral and identified interest categories advertisers use to serve targeted advertising. The tools would also enable a consumer to opt out of receiving such advertising. Yahoo! actually will prevent partner sites from collecting consumer data if a consumer opts out, while Google will disable interest-based cookies and remove demographic and interest-related information from its Chrome browser when a consumer opts out.

Neither the industry’s self-regulatory program, nor the consumer tools available through the DAA’s program, were ever intended to stop data tracking (as you probably know, “do not track” is getting lots of play in Congress and the media lately). Microsoft and Mozilla have separately introduced modifications to their IE and Firefox browsers (i.e., HTTP header settings) that allow consumers to alter the settings and alert advertisers that they have opted out of tracking; although the settings do not block tracking per se, they will simply serve as notice to the companies that may be tracking user data of that consumer’s preference.

As always, if you need guidance for your advertising and marketing efforts or privacy and data protection from legal representatives who deal with these issues every day, feel free to call me, Joseph I. (“Joe”) Rosenbaum, or any of the Rimon attorneys with whom you regularly work.

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I See Paris, I See France: Google’s Street View Draws French Fine

On December 20, 2010, a Legal Bytes blog entitled Look! Out the Window! It’s a Peeping Tom! No, It’s Google Street View noted the problems Google was facing as a result of a faux pas in connection with its Street View automobiles roaming the streets equipped with cameras. As we reported earlier, Google’s picture-capturing vehicles appear to have accidentally gathered data over unsecured Wi-Fi systems in more than one country and city around the globe – including France.

Although Google agreed to delete the Wi-Fi data collected accidentally and has apologized, if one picture is worth a thousand words, France has apparently decided that Google’s pictures were worth about €100,000. This is reportedly the highest fine imposed by the CNIL (the National Commission for Information Freedom – the French data-protection regulatory body) since it was given the authority to levy financial penalties in 2004. The financial sanctions were levied because Google’s activities were considered to be "unfair collection" of data under French law, data that Google was able to collect for economic advantage. The "accident" resulted from some "sniffing" programming code that ostensibly carelessly found its way into the equipment capturing Street View data in the cars as they roamed highways and byways.

While other countries are considering fines and investigations that are on-going, some countries (e.g., the United States) have apparently dropped the investigations or are not considering penalties at this time. This is not the last we will hear of location-based or geo-targeted information raising an uproar, as people "check in" and the surveillance society becomes closer to reality than we often care to admit. The law and regulation are not harmonized around the globe, and many regulators and laws don’t even adequately address the problem – often created because, like so many other issues in our digital world, some information is being shared voluntarily, some is not, and some is a blend.

As always, if you need advice and counsel about your own advertising and marketing efforts, or privacy and data protection guidance from legal representatives who deal with these issues – in the United States and around the globe – every day, feel free to call me, Joseph I. ("Joe") Rosenbaum, or any of the Rimon attorneys with whom you regularly work.

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Adwords Add Nauseum – What if the Jabberwock Wrote Blogs

The Adword Lawsuit

Now D (Defendant) buys competitor’s words from a search engine, you see.
What words do they buy? Just brands that are popular – with you and with me.
They buy words I might search for when I am looking for thee. 
When we search for P’s (Plaintiff) product, they also find me.
D’s product and brand pops up with such glee; a sponsored link for consumers to see.

Now P gets really mad, call the lawyers, they do,
P’s marketers scream loudly, "Go sue, yes, let’s sue."
So do what they might and do what they may,
The lawyers do sue, in court we shall have our day! 

But wait just a moment, says the court to party P,
In order to win, two things prove for me,
Did D "use the mark in commerce" for all the world to see
And can you prove that buyers, from deception and confusion are free?

Well maybe I can and maybe I can’t, says P not quite funny.
But Your Honor, you do know I’ve invested huge sums of money.
With branding and ads placed in time and in space, 
How can D be permitted to stand in my place? If a "mark" I invest in, an intellectual property right,
Surely you will protect my investment before calling it a night!

Not so, sayeth the court and much to Plaintiff’s fright.
‘Tis only deception we courts should set right.
The mark is intellectual and property we know,
But in "adword" competition, deception is as far as we go.
So P left the stage, bloodied but resolved to fight another day,
But so far and at this point, the Ninth Circuit says "no way."

 

The English Translation

Consider the case of Network Automation, Inc. v. Advanced Systems Concepts [No. 10-55840 (9th Cir. 3/8/11)]. Network Automation sells scheduling and management software under the brand name AutoMate. Its competitor, Advanced Systems Concepts, has a product called ActiveBatch. Now in 2009, Network Automation purchased keywords, including "ActiveBatch," from Google and Bing. When consumers searched for "ActiveBatch," the displayed results carried a sponsored link to Network Automation’s website. Naturally, Advanced Systems demanded Network Automation stop using its name as an advertising keyword, claiming the use infringed its intellectual property rights. Network Automation refused and Advanced Systems sued.

In order to prevail, traditional trademark law says Advanced Systems must show that the mark was "used in commerce" and that consumers of these competitive products are likely to be confused. I won’t bore you with the legal machinations leading up the ruling last week, but first the Ninth Circuit clearly joins the Second Circuit in stating the purchase of adwords is "use in commerce" for purposes of trademark law (the Second Circuit made a strong statement to that effect in Rescuecom v. Google Inc., 562 F.3d 123, 127 (2d Cir. 2009)). But what about the likelihood of confusion?

Here, Advanced Systems failed to convince the court that a "sophisticated" Internet consumer (the target consumer for this product) was likely to be confused by the keyword advertising strategy. "A sophisticated consumer of business software exercising a high degree of care is more likely to understand the mechanics of Internet search engines and the nature of sponsored links, whereas an un-savvy consumer exercising less care is more likely to be confused," the ruling states.

While intellectual property lawyers will themselves review the Ninth Circuit’s distinction between the Sleekraft factors used to determine likelihood of confusion (named from AMF, Inc. v. Sleekraft Boats, 599 F.2d 341 (9th Cir. 1979)) and those used in the Brookfield case (Brookfield Communications, Inc. v. West Coast Entertainment, 174 F.3d 1036 (9th Cir. 1999)), you should know the Ninth Circuit felt the right factors to consider in competitive adword cases are: strength of the mark, evidence of actual confusion, type of goods, the degree of care likely to be exercised by the purchaser, and the appearance of the ads and surrounding context on the screen displaying the results. 

But wait a minute. If the brand owner has invested significant time and money building brand recognition and a strong mark, shouldn’t it be entitled to protection? Put another way, if a trademark is intellectual PROPERTY, don’t I have the right to protect my asset and not give the alleged "infringer" a free ride on my investment? Well the Ninth Circuit seems to be saying "no, you don’t." 

The court reasoned that trademark law focuses on protecting the consumer (and correspondingly the trademark owner) from the likelihood of confusion. Even though, over the past decade (inspired by cases like Brookfield), companies sought to emphasize the "property" aspect of their marks – protecting their investment and asset value – this court feels that is not the right approach. With this ruling, the Ninth Circuit appears to dismiss the property or asset "value" and investment argument, and makes a fairly clear statement that the rationale for protecting trademarks and the basis of permissible legal action still remains consumer deception and confusion. "Did D ‘use the mark in commerce’ for all the world to see, and can you prove that buyers, from deception and confusion are free."

For these judicial combatants, it means Network Automation can keep advertising on search engines using keywords that include the name of Advanced Systems and its products. Want to read the case for yourself? You can download your own personal copy and read the entire Ninth Circuit decision in this case right here: Network Automation, Inc. v. Advanced Systems Concepts. Need help? Contact me or the Rimon attorney with whom you regularly work.

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Twitter Settles with FTC – Gets 20 Years Probation!

On Friday, March 11, 2011, the Federal Trade Commission issued a press release announcing that, by a 5-0 vote, the Commissioners had approved a settlement with Twitter, stemming from charges that the social media and social networking site had deceived consumers by failing to protect personal information and potentially compromising their privacy. Last June, the FTC had charged Twitter with lapses in data security sufficiently serious that hackers were able to compromise administrative control, including both non-public user information and consumers’ private tweets. Hackers could send out fraudulent phony or spoofed tweets from virtually any user’s account.  The complaint originally filed against Twitter alleged that there were at least two instances where hackers were able to get control in early 2009, although it is possible there were other times as well. 

Twitter’s privacy settings ostensibly permit a user to identify tweets as private, and the FTC has consistently maintained that when a company posts a privacy statement or policy, aside from seeking to form a binding agreement between company and consumer regarding use of the site and the service, it also can make claims, announcing (i.e., advertising) the quality, integrity, reliability and security (among other things) of the features, functions and operations of the site that the public and each consumer using the service can rely upon. As the FTC noted in its press release, Twitter’s privacy policy says, "Twitter is very concerned about safeguarding the confidentiality of your personally identifiable information.  We employ administrative, physical, and electronic measures designed to protect your information from unauthorized access." From a regulatory perspective, this statement is viewed as constituting a ‘claim’ relating to the data protection measures Twitter utilizes and how the company treats customer information and activity.  

Although a settlement finalized in a consent agreement doesn’t amount to an admission of liability or a violation of any law or regulation, a final consent order does have the force of law against the company going forward. In this case, Twitter has agreed that for the next 20 years it will (a) not mislead consumers about the extent to which it protects the security, privacy and confidentiality of nonpublic consumer information, (b) respect and honor consumers’ privacy choices, and (c) not mislead consumers about what it does or how safe the mechanisms are that are designed to prevent unauthorized access.  Twitter also agreed that every two years for the next ten years, it will have an independent auditor review and evaluate Twitter’s information security program.

Need more information about how the FTC views terms of use, privacy statements and the ‘advertising’ claims that arise in social media?  Contact me or the Rimon attorney with whom you regularly work.

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2011 ANA Law and Public Policy Conference – Don’t Miss It

The Association of National Advertisers (ANA) is holding its annual Law and Public Policy Conference in Washington, D.C. The digital revolution is well underway and changing the legal landscape every day at lightning speed.  Keeping up is becoming a nearly impossible task.  The Seventh Annual ANA Advertising Law and Public Policy Conference, co-chaired by Rimon partner and ANA General Counsel, Doug Wood, and the ANA’s Executive Vice President for Government Relations, Dan Jaffe, enters the battlefield by putting together a stellar faculty, including leading regulators, top practitioners, and serious critics, capped off by a session that puts it all together, led by a leading law professor.  The new world started with everything becoming an "e" – e-mail, e-commerce, e-this, e-that.  And then came wiki — Hawaiian for speed.  Enter Wikipedia, wiki-news, wiki-this, wiki-that.  Welcome to the new world of wiki-lawyers.

Continuing Legal Education (CLE) credits will be provided.  What are you waiting for?

When

Tuesday, March 15, 2011, at 7:30 a.m., through Wednesday, March 16, 2011, at 5:00 p.m.

Where

Park Hyatt Washington, D.C.
24th & M Streets, NW
Washington, D.C.

Get more information & REGISTER.