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TRANSCRIPT
Using Selfies and Other Real Time Marketing Tactics:
What Would You Approve?
Presented by:
Brian L. Heidelberger, Winston & Strawn
Romy Horn, 360i
Miri Miller, Dentsu Aegis
Joe Khanna, MasterCard
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Miri’s Dog
Before We Start …
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• How Conservative are you (your company) with regard to IP
and Social Media:
• Conservative (won’t take risks)
• Middle of the Road (evaluate and take risks worth taking)
• Liberal (take a lot of risk)
Poll Question #1
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• Has your company ever had a “significant” IP claim related
to your company’s use of social media?
• Yes
• No
NOTE: for purposes of this poll, “significant” means a lawsuit or a claim
that was settled in excess of $5,000-$10,000.
Poll Question #2?
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• What do you consider the “biggest IP risk” in social media?
• False Advertising
• Copyright Infringement
• Trademark Infringement
• Right of Publicity
NOTE: for purposes of this poll, “biggest IP risk” means the issue you
are most conservative on.
Poll Question #3
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Copyright
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Would you approve?
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• Photo used without permission
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Would you approve?
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Looks Like “For Dummies”
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Ad Only Similar in Idea
• Depictions substantially different
• Vehicles, settings, and animals
• Total concept and feel different
• Warmth, family and fun v. raw power, independence and escape
Original Advertisement Toyota Advertisement 10
• Factual Allegations:
• Beyoncé’s trailer and film for the
release of her album “lemonade”
infringes plaintiff’s copyright in
his short film
• Plaintiff produced 9 visual, audio
and “total concept and feel” alleged
similarities
• Holding:
• Alleged similarities consist almost
entirely of ideas not original to
plaintiff and of stock elements with
which a casual observer would be
familiar.
• Sharing the same narrative theme,
same aesthetic mood and pace are
unprotectable ideas
• Differences between each of the
Lemonade Video Didn’t Infringe Short
Film
Matthew Fulks v. Beyoncé Knowles-Carter
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• Factual Allegation:
• Steak and Shake’s TV ad infringes
Culvers’
• “Expression, images, dialogue, and
sequencing of the two ads both “feature
a quintessential local butcher’s shop
with an older butcher displaying three
different cuts of ‘well-marbled’ beef that
‘come together’ as the camera pans to
the grill showing the patties being
seared to ‘seal’ in the flavor or juices.”
• Decision:
• The common elements identified by
Culver lack the necessary modicum of
creativity to give rise to copyright
protection and the commercials differ in
certain significant respects
Court Rejects Claim That Competitor’s Ad is a Copyright
Infringement
Culver Franchising v. Steak and Shake
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Trademark/False Association
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Would you approve?
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Would you approve?
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Would You approve?
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Would you approve?
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Would You Approve?
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Lawsuit Over Depiction of Un-Named Product
• viral video didn’t name
plaintiff
• but featured its mattress
• mattress looked extremely
painful
• Decision: Plaintiff’s trade
dress was identifiable and
defendant enjoined based
on false advertising claims
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Lawsuit Over Reference to Famous Movie Quote
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• Factual Allegations:
• Kardashian’s granted Haven Beauty
the right to its trademarks for
cosmetics
• Kardashian’s terminated the
license for Haven Beauty’s
alleged breach
• Haven Beauty countered that it
wasn’t in breach and Kardashian’s
improperly terminated the license
• Haven Beauty continued to use
trademark and did not pay
royalties
• Holding:
• Even if Kardashian had no right
to terminate or Kardashian’s
breached first, Haven Beauty
cannot stop paying royalties and
continue to use a trademark
Kardashian Trademark Infringed By Licensee Even If Kardashian’s Breached License
2Die4Kourt, et al. v. Hillair Capital Management, LLC, et al.
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• Distinctive Assets promotes third-party
products through high-profile gift bags
given to celebrities who are nominated for
major awards.
• The gift bag at issue in the lawsuit
includes high-end items valued as high as
$200,000, which is being marketed as the
“Everyone Wins Nominee Gift Bags in
Honor of the Oscars®”.
• “#OscarGiftBag” to promote its gift bags
• Distinctive Assets’ marketing is conveying
that these gift bags are authorized by the
Academy, or otherwise associated with
the Oscars®, when in fact there is no
affiliation.
Lawsuit Over Gift Bags and Hashtag
Academy of Motion Picture Arts and Sciences v. Distinctive Assets
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• Factual Allegations:
• Tyson launched “Park’s Finest” hot
dogs
• Parks LLC sells sausages and other meat
products
• Parks claims that Tyson infringed upon
its “Parks” trademark and engaged in
false advertising
• Holding:
• Court found no trademark infringement
or false advertising
• Wasn’t “false advertising” because
• calling Tyson’s product “Park’s
Finest”—does not relate to the
“nature, characteristics,
qualities, or geographic origin”
of the product; and
• Tyson’s use of “Parks” didn’t
function as a trademark
• Wasn’t trademark infringement because
• Consumers would understand that
the “Park’s” in “Park’s Finest”
Court Holds No Trademark Infringement and/or False
Advertising of “Parks” Trademark by use of “Park’s Finest”
Parks, LLC v. Tyson Foods, Inc.
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Right of Publicity
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Would You Approve?
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Would You Approve?
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Brand Post Links To
Would You Approve?
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Lawsuit by Estate of Julia Child“Airbnb is giving away a free night at the former home of Julia Child in
Provence, France.”
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• Factual Allegations:
• Lohan’s likeness used in two pieces of
still artwork and the game character in
the video game, “Grand Theft Auto V”
• Take-Two purposefully used Lohan’s
bikini, shoulder-length blonde hair,
jewelry, cell phone, and “signature
‘peace sign’ pose”
• Take-Two denied Lohan inspired or
resembled these characters other than
all being young, blond, and female
• Holding:
• Take-Two did not use Lohan’s name,
portrait, or picture, never referred to
Lohan by name and never used a
photograph of Lohan
• The game is protected as fiction or
satire
Court Rejects Lindsay Lohan’s Right of
Publicity Claim
Lindsay Lohan v. Take-Two Interactive
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Reference to "World Record Holder" Generates Lawsuit
• World record holder for most
consecutive kicks of one hacky sack,
• sued over 5 Hour Energy commercial
• depicted a man who claimed to have
mastered origami “while beating the
record for Hacky Sack.”
• Court dismissed the lawsuit as the
commercial did not identify the world
record holder.
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Olympics
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Would you approve?
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Would you approve?
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“No Social Media” for Non-Olympic Sponsor Policy
Challenged in Lawsuit
Zerorez v. U.S. Olympic Committee
• Factual Allegations:
• USOC claims that non-sponsor brands should not be posting about the Olympics on social media
• Includes prohibition on use of photos and use of hashtags such as #RIO2016or #TeamUSA
• Lawsuit Seeks:
• Court to declare that example posts don’t violate law and that it’s not illegal to reference the Olympics in social media, including use of hashtags
• Example Posts:
• Congrats to the 11 Minnesotans competing in 10 different sports at the Rio 2016 Olympics! #rioready
• Are any Minnesotans heading to #Rio to watch the #Olympics? #RoadToRio
• Let the rumble in Rio begin! From badminton to BMX, Minnesotan Olympians are at the #Rio2016 Olympics. Go #TeamUSA!
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• Motion to dismissed filed by USOC
• MTD not responded to by Plaintiff
• USOC asked court to grant motion
“No Social Media” for Non-Olympic Sponsor Policy
Challenged in Lawsuit
Zerorez v. U.S. Olympic Committee
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Thank You!