Advertising Law Blog

Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotions Group and Co-Chair of the firm's Brand Management & Protection Group, will be presenting at the webinar "Stand By Your Word - Global Marketing and Sales Regulation 2023" on June 26th. The webinar is sponsored by the Association of Corporate Counsel Israel, Barnea Jaffa Lande, and Olshan Frome Wolosky LLP. Andy will discuss Extraterritoriality and US Enforcement of Advertising and Marketing Laws. Reserve your spot here.

A Prince-ly ruling for copyright holders

“If one of us is not free to celebrate ‘Taco Tuesday,’ then none of us are free to celebrate ‘Taco Tuesday.’”

In a somewhat whimsical, but still serious, trademark cancellation proceeding filed on May 16, 2023, Taco Bell is seeking to cancel the registration of the trademark TACO TUESDAY, which has been owned by Spicy Seasonings, LLC (dba Taco John’s) since 1989. Taco Bell is not seeking trademark protection of its own for the phrase. Rather, Taco Bell is arguing that no one should own the phrase, and everyone should be entitled to use it.

Taco Bell states that it is “not ...

Olshan partner Andrew Lustigman, Chair of the firm's Advertising, Marketing, and Promotion's Practice and Co-Chair of the Brand Management & Protection Practice, and associate Morgan Spina published an article on April 21 in Sports Litigation Alert (subscription required) focusing on how services such as MLB's Apple TV+ arrangement must adhere to compliance obligations in a rapidly changing regulatory environment.

On April 13, 2023, the Federal Trade Commission (FTC) issued Notices of Penalty Offenses (NPOs) to approximately 670 companies in order to ensure that the companies are aware of the FTC’s standards for product claim substantiation. The Notices were sent to companies marketing over-the-counter drugs, homeopathic products, dietary supplements, and functional foods.

FTC’s Proposed New Rules for Businesses Selling Subscriptions Heighten Compliance Obligations, published in The New York Law Journal

The National Advertising Division’s (“NAD”) streamlined Fast-Track SWIFT (Single Well-Defined Issue Fast Track) process is an expedited process by which single-issue truth in advertising claims in national advertising may be reviewed and assessed. The popularity of SWIFT challenges, which are structured to resolve designated challenges expeditiously, has been continuing to grow as competitors take advantage of the streamlined process.

The Federal Trade Commission (“FTC”) has been interested in pursuing amendments to the Negative Option Rule for several years. In 2019, the FTC published an Advance Notice of Proposed Rulemaking (“ANPR”), soliciting public comment on certain issues related to negative options and automatic renewal contracts, including disclosures, consent, and cancellation. Following receipt of such comments, the FTC issued an Enforcement Policy Statement Regarding Negative Option Marketing in 2021. Now, in its latest and potentially most impactful effort, the FTC has issued a Notice of Proposed Rulemaking (“NPRM”), proposing several specific changes to the Negative Option Rule, as the existing rule was woefully out of date.

Defendant disputes the factual basis for the precedential ruling

Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotion's Group and Co-Chair of the firm’s Brand Management & Protection Group, will speak on the panel “Evolution of Food Advertising and Marketing: From Print Ads to Social Media to the Metaverse” as part of ACI’s 7th Annual Summit on Food Law – Regulation, Compliance and Litigation on April 19, 2023, at 10:30am at The Metropolitan Club, Chicago, IL.