Marketing – Page 2

January 25, 2017

Legal Bytes – A New Beginning

A long time ago in a galaxy far, far away…… oops, wrong beginning.

Welcome to the new Legal Bytes blog. As many of you know, my Legal Bytes blog has been dormant after my recent transition to Rimon, P.C.. Getting set up, ensuring smooth transitions for clients, enhancing the look and feel of the blog has taken a longer than I hoped, but hopefully the bugs are out of the system and it’s now up to me to try my best to make the new Legal Bytes blog worth the wait. For newcomers, buckle your seatbelts – this isn’t your ordinary legal blog!

What happened? Why does it matter? How does or could it affect you? Inquiring minds always want to know and in the process of trying to answer those questions for you, I will always try to illuminate and perhaps also entertain you. In the coming months I’ll entice you into regular readership, enlighten you with timely content, addict you with my trivia contests, entice you to keep in touch and most of all, try to help you better understand how developments in the law and regulation may affect you.

I intend to continue Light Bytes, with interesting quotes and sayings that pique my interest and hopefully yours. Of course, there was never a question about my trivia contests. After all, who else but a lawyer could call it “Useless But Compelling Facts”? We have once again made arrangements with the International Law Office (ILO) based in London. I am privileged to have been re-appointed as Editor and exclusive content coordinator for their U.S. Media, Marketing, Sports & Entertainment Newsletter. Although there will be content you will see exclusively in the ILO newsletter, you may also see many of our Legal Bytes articles re-purposed and ‘internationalized’ in collaboration with much appreciated work of the ILO editorial staff. I am again excited to be working with such a valued organization and truly great people – shout out to Carolyn Boyle, my Editorial contact.

Want to know what’s on my radar for the year ahead – I won’t spoil all the surprises, drone on about drones, nor will I keep my head in the clouds or the crowds. I am fascinated by the legal implications of the Internet with Things (yes, I replaced ‘Of’ with “With”). I’m also concerned about cybersecurity and data protection. I am intrigued by the growing robustness of augmented reality, which means I don’t have to walk around with those funny goggles or a digital scuba mask to experience the virtual world. Mobile technology is transforming our world – making digital content, e-commerce and communication available to billions of people that had previously never seen a television, had a bank account or used a telephone. I would be remiss not to mention social media – maturing and increasingly commercialized – further blurring the distinctions between information, entertainment and advertising; between me as an individual and an employee; between me at play and at work; and between my trademarks and my reputation; and between my insatiable desire to tell the world and my seemingly paradoxical concern over my privacy!

It is a brave new world – so much to know and so much to keep up with.

So stay tuned, and as always, thank you for reading.

January 19, 2016

The Paradox of Illumination

I first heard about the paradox of illumination from Lee Loevinger, an extraordinary gentleman I was privileged to know professionally. Lee was a multi-faceted, multi-talented, thought-provoking lawyer whose sage advice and stimulating ideas continue to resonate with those honored to have known him, and everyone else wise enough to read his work and the words he left behind.

In a nutshell, the paradox of illumination is extraordinarily complex, but simple to describe. Much like Albert Einstein who, when asked about his theory of relativity and the notion that time is not constant, described it in personal terms: if a man is at dinner for 10 minutes with a beautiful woman, it seems like a fleeting instant; but sit on a burning hot stove for 10 minutes and it seems like an eternity :).

The paradox of illumination can similarly be described on a personal level. Sit in completely dark room. Really. Completely dark. What can you see? Nothing. You know little about your surroundings and can only sense your own body – in fact, you don’t even know how far your surroundings extend beyond your immediate sensations.

Now light a match. The circle of illumination allows you to see a little of what is around you – but the perimeter and beyond are still dark. Now light a candle. The circle of what you can see illuminated by the light is larger than before, but the size of the perimeter beyond which you cannot see is also a lot larger than before. The larger the light, the larger the area of illumination, but larger by far is the perimeter beyond which we know nothing.

The more we can see and the more we know and understand about the world around us, the larger the amount becomes that we don’t know. In other words, as the circle of our knowledge grows, so does the amount of knowledge we cannot see and don’t know. The paradox of illumination is the paradox of knowledge. Perhaps that is why Michelangelo, when he was more than 87 years old, still said, “Ancora Imparo” (I am still learning).

January 14, 2016

Curiosity

Curiosity requires a sense of inquisitiveness.

Not all inquiries reflect curiosity, curiosity is inquisitive by nature.

Curiosity is the desire to learn by asking questions, dissecting, examining, exploring and investigating.

Curiosity is at the heart of most experimentation, and to be truly satisfying requires the ability to avoid preconceived ideas or foregone conclusions, but not necessarily ignoring them.

Stephen Hawking once said that “The greatest enemy of knowledge is not ignorance, it is the illusion of knowledge.”

Curiosity is a recognition of what we don’t know and the hope that by exploring the unknown, we may learn and discover new questions to ask.

It is the paradox of illumination – but more on that next time.

January 8, 2016

2016 Metamorphosis *

Legal Bytes will soon morph** and undergo a transformation***

Watch For It

* Metamorphosis: A noticeable change in character, appearance, function or condition.

** Morph: To undergo dramatic change in a seamless and barely noticeable fashion.

*** Transformation: A marked change in appearance or character, especially for the better.

December 22, 2015

Thank You for 2015 – Best Wishes for 2016

This is the time of year when many of you are celebrating holidays; spending time with family, friends and loved ones; bidding farewell to 2015; and looking forward to the New Year – 2016. A time when many of us pause to reflect on what has happened in the past year and wonder what the new year will bring. There are people who have touched us and some with whom we’ve gotten closer; some we have missed and many with whom we resolve to try and be better in the new year; and perhaps a few we might like to forget. We pause to remember those who are no longer with us and appreciate that by remembering them, we keep their spirit – all we have learned from them and all they have meant to us – alive. As 2015 comes to an end, we reflect on friendships and relationships, events and experiences. Many will use the opportunity to thank those who have helped us in tough times and those with whom we cherish sharing the good times.

For me it has always been a time to resolve to keep doing the good things I’ve done and to be better about trying to do those things I should have done. This time of year gives me an excuse to say thank you and express appreciation to everyone who has enriched my life. If you are reading this, you are part of my audience – part of the fabric of my professional life and, like the threads of that fabric, you have helped me weave the patterns and textures you read in these digital pages and the thoughts and sensitivities that become imprinted in my mind. I am grateful for your readership and in some cases, your friendship. I am always appreciative when you take a moment to read and perhaps gain some insight, while also being a little entertained.

So let me take this the opportunity to wish each of you, your families, friends, loved ones and yes, even an enemy or two, a beautiful and joyous holiday season and a healthy, happy new year, filled with wonder and magic, health and joy, challenge and opportunity, and prosperity and success. I especially want to thank a few people at Rimon like Kaitlin Southron, Lois Thomson and Rebecca Blaw who make this blog happen. These are the people you don’t see, but I do! They make Legal Bytes come alive. They are always amazing, consistently awesome and unbelievable under pressure. There are insufficient words to express my gratitude and appreciation – especially when they get my email that says “can we please post this ASAP.” Thank you. You make it look easy, you make me look good. I could not do this without you!

Continue reading “Thank You for 2015 – Best Wishes for 2016”

June 5, 2015

FTC Updates Its FAQs for Endorsement Guides

The Federal Trade Commission has just updated its version of Frequently Asked Questions, or FAQs, that relate to the “Guides Concerning the Use of Endorsements and Testimonials in Advertising” that went into effect December 1, 2009. You can find the updated FTC website page right here “What People Are Asking.”

If you are a loyal Legal Bytes’ reader, you know we have been following this since as early as November 2008, when we posted Endorsements & Testimonials – FTC Broom Proposes Some Sweeping Changes, and numerous updates and informational pieces have graced these pages since then (now when we say “pages,” we mean web pages). You can refer back to any or all of them, or you can check out any you may have missed right here: FTC Testimonial and Endorsement Guides Stimulate Industry Comment (March 2009); a presentation given at the University of Limerick on the subject entitled “Trust Me, I’m a Satisfied Customer: Testimonials & Endorsements in the United States,” which you can download; Ghostwriters: Medical Research or Paid Endorsers (and are they mutually exclusive?) and Rights of Publicity – Wake Up and Smell the Coffee! (both in August 2009); and FTC Releases Updated Endorsement & Testimonial Guidelines and Rimon Analysis of the New FTC Endorsement and Testimonial Guidelines (both in October 2009).

In December 2009, Legal Bytes posted another thoughtful and practical analysis FTC (Revised) Endorsement Guides Go Into Effect, written by John P. Feldman, so you know Rimon is following and keeping up with developments as they occur.

So, if you want to know more or have questions, please do not hesitate to contact me, or any Rimon attorney with whom you regularly work.

June 28, 2012

Gift Cards Deal With Discounts & Charity; Chart Updated

This post was written by Keri S. Bruce and Joseph I. Rosenbaum.

If you have been coming back to Legal Bytes to keep up with this and other developments in the law of Advertising Technology & Media ("ATM"), you know that we have been following the world of gift cards for many years (e.g., Gift Card Issuers Fight & Switch, Gift Cards in New Jersey: It’s Complicated!, Federal Reserve Board Has a Free Gift (Card) For You, Credit Card Act of 2009: Act I, Scene 1, Gift Cards in the Legal Limelight, Gift Cards: The Updated Chart is Still Free). If you are a regular Legal Bytes reader, you also probably know that we published and routinely update our U.S. Gift Card Statutory Chart – a reference tool you will certainly find helpful, although not a substitute for experienced legal counsel. In addition to the amendments noted below, we have updated our U.S. Gift Card Statutory Chart and you can read or download the updated chart right here (U.S. Gift Card Statutory Chart) [PDF].

You will also appreciate that we advise clients in this area all the time, assisted by an able team of financial services regulatory specialists, and so it will come as no surprise that we are telling you about some changes to the law in Vermont and Rhode Island that apply to gift cards. The term "gift certificate" is often used in the law, but separate definitions make it clear that the law applies to cards or any similar instrument, regardless of the material (e.g., paper, plastic, beads).

In addition to the Federal Credit Card Act of 2009, many states have their own regulations of gift cards and gift certificates. While many states have carve-outs in their gift certificate laws for loyalty and reward cards, Vermont has gone a step further and embraced group coupon/discount providers by separately defining these cards and providing separate disclosures to benefit consumers. In light of popular group coupon/discount providers, new marketing efforts involving gift cards and the continued prevalence of class actions, such as In re Groupon Marketing and Sales Practices Litigation, where Groupon reached a nationwide class action litigation settlement over allegations it had illegal expiration dates and other provisions on its vouchers, it is even more important to stay on top of these ever-changing laws.

Effective as of May 18, 2012, amendments to the Vermont statutes (Vt. Stat. § 2701 et seq.) seek to address issues arising from popular group coupon/discount providers. The new amendments introduce definitions for "a loyalty, award, or promotional gift certificate," "paid value" and "promotional value," extend the expiration dates for the paid value of a gift certificate, and remove the specific exemption for food product gift certificates.

Under the amended law, a "loyalty, award, or promotional gift certificate" is defined as a gift certificate issued on a prepaid basis primarily for personal, family, or household purposes to a consumer in connection with a loyalty, award or promotional program, and that is redeemable upon presentation to one or more merchants for goods or services, or is usable at automated teller machines.

These definitions are important because, if defined as loyalty, award or promotional gift certificates, they can be exempt from the statute’s requirements on expiration dates and fees and some other restrictions that would otherwise apply, provided that certain requirements are met.

To qualify, these instruments must disclose, on the front of the certificate, that the certificate is issued for loyalty, award or promotional purposes, and the date of expiration for both the paid value and promotional value (if any). (More on that distinction in a moment.) On or along with the instrument, the consumer must be informed as to the amount and conditions under which fees may be imposed, and if a fee is assessed and on the instrument, a toll-free telephone number and, if one is maintained, a website a consumer may use to obtain fee information (disclosed on the certificate).

The Vermont amendment distinguishes between "paid" and "promotional" value. Paid value is the value of any money or other consideration given in exchange for the gift certificate. Promotional value means any value shown on a gift certificate in excess of the paid value. Example, a loyalty program buys 1 billion $25 gift cards and pays $19.99 each. The $19.99 is the paid value and the $5.01 is the promotional value. The statute prohibits the paid value from expiring for five years (extended from the previous three-year requirement), while the promotional value is exempt from the restrictions on expiration dates and fees.

Meanwhile, in Rhode Island, amendments – effective as of June 19, 2012 – to gift certificate provisions of the state’s Unfair Sales Practices law (R.I. Gen. Laws § 6-13-12) allow gift cards donated for fundraising purposes to expire, but only if the card clearly states that the instrument has been donated for charity and a clearly defined expiration date of not less than one year after the issuance, is disclosed to the recipient.

If you need help from lawyers who know this area and can provide experienced, practical counsel, contact Joseph I. ("Joe") Rosenbaum or Keri Bruce or your favorite Rimon lawyer, all of whom will be happy to help.

May 23, 2012

IAPP Privacy Presentation – Is the Wizard of Oz Still Behind the Curtain?

On May 10, 2012, I had the privilege of making a presentation at the IAPP Canada Privacy Symposium 2012. The title of my presentation was "Social and Mobile and Clouds, Oh My!" and it addressed some of the emerging issues in privacy, data protection and surveillance that arise as a result of globalizing technology and the convergence of social media, mobile marketing and cloud computing.

As part of that presentation (and as I have started to do for some time now in other presentations), I raised the issue of how lawyers, the law, legislators and regulators often use words to describe activities – words rooted in tradition or precedent – that are no longer applicable to the activity in today’s world. "Privacy" is such a word, although "not applicable" perhaps is too harsh. Obviously the word has significant applicability in a wide variety of situations. But "invasion of privacy" has become a knee-jerk reaction to virtually every information-gathering activity, even information readily and publicly available and, in some cases, posted, disclosed or distributed by the very individual whose privacy is alleged to have been "invaded."

Please feel free to download a PDF of my presentation, "Social and Mobile and Clouds, Oh My!" [PDF] (Note: Embedded video file sizes are too large to include), and let’s start a conversation about how we use words and how they wind up in laws and regulations. Lawyers work with words. Use them artfully and they provide powerful structures within which society, commerce and all forms of human endeavor function. Use them improperly and they cause confusion, uncertainty, inconsistency and inherently inequitable outcomes.

Seems like I am not the only one to point this out. Take a look at the insightful comments by John Montgomery, COO of GroupM Interaction, North America, as reported in a MediaPost RAW posting on Social Media entitled: If Marketing Terms Could Kill.

Kudos John. I’m with you. Let’s get it right.

FYI, Rimon has teams of lawyers who have experience and follow developments in privacy and data protection, information security and identity theft. If you want to know more, if you need counsel or need help navigating, or if you require legal representation in this or any other area, feel free to call me, Joseph I. ("Joe") Rosenbaum, or any of the Rimon lawyers with whom you regularly work.

April 2, 2012

Gift Card Issuers Fight & Switch

Back in August 2010, Legal Bytes reported that a New Jersey law applicable to abandoned property (escheat) would effectively alter the tenor and scope of the New Jersey gift card law (see, Gift Cards in New Jersey: It’s Complicated!).

Well today, in an Associated Press article published by ABC News Internet Ventures. Yahoo! – ABC News Network, it is being reported that American Express, which was already pursuing its legal rights and remedies in a law suit filed to overturn the law, has now opted to pull gift cards from retail sale in New Jersey.

The new law would require sellers in New Jersey to capture the ZIP code of everyone who buys a gift card. Monies left on those gift cards bought in New Jersey that lie dormant and unused after two years would then ostensibly be required to escheat to the state. After the law was passed about two years ago, American Express (joining forces with the New Jersey Retail Merchants Association and others), filed suit challenging the new law. Initially, a U.S. District Court issued an injunction against implementing it, but more recently the injunction was removed – perhaps the stimulus for the reported move by American Express.

If you have been coming back to Legal Bytes to keep up with this and other developments in the law of Advertising Technology & Media (“ATM”), you know that Keri Bruce in Rimon’s ATM practice group previously posted a report entitled Gift Cards Tag Along with Credit Card Legislation, noting that federal legislative and regulatory requirements will soon apply to gift cards. You will also see links to a U.S. Gift Card Statutory Chart (Updated), which those of you who work with gift cards and similar financial payment instruments may find helpful; and you already know we follow and advise clients in this area all the time, assisted by a team of financial services regulatory specialists as well.

So if you need help from lawyers who know this area and can provide experienced, practical counsel, contact Joseph I. (“Joe”) Rosenbaum or Keri Bruce, or your favorite Rimon lawyer, all of whom will be happy to help.