Buffalo Panel #2/Responding to New Types of Advertising

Sonia Katyal, Fordham Law: Anti-branding and Stealth Marketing: The Love that Dare Not Speak its Name

Wayne’s World (1992): Mike Myers & Dana Carvey are confronted with stardom when their cable access program is bought up. They’re entreated to allow their corporate sponsor on the show, and reminded the contract requires this. Wayne the character resists, but while openly displaying a Pizza Hut box and snacking on Doritos. Garth agrees while wearing head-to-toe Reebok and drinking Pepsi. Watch it. They’re disavowing and calling attention to it, and laughing all the way to the bank.

Years later, product placement has gone even further. A brand can be political and commercial at the same time. Anti-branding/culture jamming movement has sprung up, cataloged in Naomi Klein’s No Logo. Billboard liberation movement recodes some messages in urban spaces. In cyberspace, tons of examples as well—parody sites, gripe sites, gamers who create anti-advergaming. As many ways as people design branding, anti-branding can follow. Artists and activists raise complicated questions for the law—a First Amendment-IP clash.

In the last few years, we’ve seen a really dramatic shift in relation between brand and anti-brand. The brand used to coexist with the anti-brand; consumers could identify both by using context. But as consumers have grown more overloaded with information, advertisers have been forced to seek more ways to communicate, leading to blurring between commercial and noncommercial. People don’t respond to traditional ads. Thus the rise of stealth marketing in real and digital space. Public and private are blended.

Stealth marketing often takes place within the traditional channels of antibranding activism. (I’ve wondered whether that V spoiler campaign is in fact sponsored by ABC, actually.) Ellen Goodman describes two types of stealth marketing: traditional payola and immersive/embedded advertising where products are part of content. New generation of product placement is far more diverse—reality shows, videogames, individuals themselves sponsor viral videos, sponsors sit in on editorial meetings for TV and new media, advertisers produce their own content. A new generation of companies instituted fake sites and blogs—Wal-Mart blog about an average American couple traveling across the US spending each night in a Wal-Mart parking lot. Turned out to be funded by Wal-Mart. Ask.com had a guerrilla marketing campaign against Google—Stop the Online Information Monopoly, speaking the language of the antibranding activist—directed them to informationrevolution.com, owned by Ask’s ad agency. Mozilla: site called “Fight Against Boredom,” with a fake Facebook page etc. Advertisers can use flash mobs too.

Implications for trademark: can be difficult to tell the difference between official and unofficial pages—sometimes they can collaborate, as with Coca-Cola’s Facebook page created by fans. In other cases, companies may be less enthused. Facebook now requires individuals with company pages to prove they legitimately speak for the company—“helping companies keep control of their messages,” in order to be able to charge them someday. Authentication = companies can shut down commentary.

Cannibalization of anti-brand by brand—where is the line when they use the same channels? What’s the role of the law? Clear delineations between commercial and noncommercial speech are nearly impossible. Next generation of cases will have to grapple with these difficulties. Should the law require more disclosure of sponsorship? What would that look like, and how would it affect the consumer imagination?

Zahr Stauffer: Historical narrative can be complicated—there’s a conventional view about when product placement began, but it didn’t begin with Reese’s Pieces. It’s as old as Hollywood itself. This has ramifications for whether the practice is depicted as disruptive. It obfuscates emphasis on other key factors in your story—changes in consumer culture, creative culture. Guerrilla marketing does seem new.

A: She doesn’t mean to say E.T. was the first time for product placement, but that it was a very dramatic example of how much companies were willing to pay. Other factors: so much cynicism attached to the notion of sponsorship. Her students turn away from sponsored products. Other: info overload. So many channels/options that it’s almost necessary for the advertiser to figure out how to use them more productively. Consumers are learning to tune ads out.

Q: Add to this what people in advertising industry say. People in the industry want to eliminate the term “advertising” and say they’re communicating, engaging, having the consumer enter their environment. We need to see the system, but also what the natives think they’re up to—their language has changed.

My thought: pursue the misuse arguments Posner offered in Ty v. PIL. It is a wrong inflicted on the information environment to disguise source to enhance credibility and sell stuff (have to confront literature on anonymity and pseudonymity).

Lisa Ramsey: Disclosure?

A: Possible—still have the cynicism to deal with.

Q: The previous panel was about blurring boundaries between consumer and worker, commercial and noncommercial sources of identity. Why are we so upset? Feminists used to argue against the public/private divide because we should make visible what’s in the private sphere. If your critique is right, disclosure won’t be enough if the brands are actually acting, teaching us how to be and think, as opposed to just communicating information.

A: Disclosure would be one step to encourage consumers to take notice of how they’re being marketed to. Expanding the parameters of fair use would also be a part of it. Both offensive and defensive strategies.

We used to think of the anti-brand world as noncommercial and branding as commercial, but markets are developing in both, which raises the question of escape as well as complicating First Amendment analysis.

Lisa Ramsey, University of San Diego School of Law: Brandjacking on Social Networks: Confusion About the Source of Information or Advertising

Virtual and physical impersonation: the Yes Men recently impersonated the Chamber of Commerce quite successfully for a short time. Many people instinctively think this is free speech, but TM law may apply and that might not be such a bad thing in appropriate circumstances.

Social networking sites: often not clear if the markholder is behind the particular page. Facebook account for Nine West model auditions, soliciting women to send contact information and photos of bodies and toes. Someone else (possibly a competitor’s employee) set up a fake Twitter for PR firm Kinner Friedman—put embarrassing comments on as well as news taken from the real site. “Janet” signed up on Twitter as ExxonMobilCorp and started interacting, though allegedly her work contained several errors. It’s not unreasonable to assume that consumers might disclose personal information to the “brand,” which might be misused—identity theft, buying nonauthentic goods. If the posts are offensive or false, this could also discourage customers from buying the products or services. Info overload: hard for consumers to figure out which of 100 Nike Facebook pages is real.

What if the fake site isn’t selling anything, though? There seems to be no commercial use. Her thesis: TM law does cover impersonation, and it should where reasonable people believe and rely on the false statement of identity and are confused about the source. However, free speech can be harmed if courts apply this outside the pure impersonation context—it should not apply to commentary/criticism. Likelihood of confusion about source only, not confusion about sponsorship/affiliation/consent, should count. (I think this claim makes Mark McKenna’s point quite well: TM’s key wrong turn came when it abandoned competition. Ramsey’s argument is essentially that someone pretending to be in competition—selling the same stuff—with the TM owner is committing a wrong; the reason that conclusion is scary is because of its implications when the person isn’t quite pretending to compete but is actually engaging in commentary. If we didn’t have such an expansive coverage of noncompeting goods and services, then we wouldn’t have to worry about the real parodist when making doctrine.)

Many TM owners have TMs on the provision of information services relating to their products/services—Viagra, for example, applied to register information services such as pamphlets, websites, and so on offering information about erectile disfunction. As long as you’re not just advertising your own goods and services, you can extend your TM to information services. In that case, someone impersonating you is competing with you in the provision of a service you also provide—information.

Can make clear that you’re not the markholder—Fake Steve Jobs, or tags like “victim” or “fan.” Courts should also look at content to see the context—Fallwell.com case. Initial interest confusion is insufficient from a free speech perspective. Another alternative: the Rogers v. Grimaldi balancing test—a fake Facebook page can be literary expression. Is the use relevant to the content? Often it will be. Does it explicitly mislead consumers as to source or content? If people really are confused, you can’t take advantage of this test. (I think this misreads Rogers by reading “explicitly” out and reducing it to a confusion test, which is of course manipulable—recall that Rogers submitted a confusion survey in that case showing levels of confusion that would have convinced some courts. The issue was that the film didn’t say “authorized” or “real” or anything else, and thus the court held as a matter of law that the First Amendment protected the title of the film. Nor did the ExxonMobilCorp account, though perhaps the contents of tweets would have crossed the line.)

Is saying that you’re the markholder a “knowingly false statement of fact”? It’s not anonymous or pseudonymous, but a false attribution of authorship. (Does that mean it’s false for me to take “Mark Twain” or “Samuel Clemens” as my pseudonym? Roleplaying groups will be very very sad to hear this conclusion. Ramsey says in response to my question that no, it has to be contextual—can’t rely on the reaction of a newbie to the forum.)

How long does confusion last? The Yes Men confused a few major media institutions for long enough to get a news cycle. What must people do in reliance on the information? Is belief enough, or do we want to require financial harm—stock price, lost sales, etc.? Do we care only about harm to consumers, or also about harm to markholders?

A commercial use requirement might be a good idea, but political groups and religious organizations would like to use TM to protect themselves, and we may well want to allow them to do so. (Once again, it’s all about competition. United We Stand is a good case because it involved competing political parties; suing Nader for using a credit card slogan was not.)

Bartholomew: Isn’t there something to be said, politically, for sucking people in—e.g., A Modest Proposal? When you see the criticism emerge, that can be more powerful.

A: That’s a huge issue—at what point do you have to get the joke? Case by case, in the end.

Q: wouldn’t this be analogous to a man appearing in a white coat in an ad, confusing consumers about whether this is a message from a doctor?

A: She’s confining analysis to impersonation of TM owners, but individuals have claimed harm from impersonation of their identities. Whether people should sue is often a big question—companies risk a backlash if they sue.

Q: Cultural question of whether this is good for society v. how we fit this in TM law—which issue do you want to address?

A: She understands why this is an effective form of communication. But that doesn’t always mean it’s protected speech or noninfringing—maybe this is civil disobedience and you take your chances if you do it.

Q: Focus on TM law limits this to US only in an international age. US tried “Brand America” overseas—ambiguous source. How can TM law help?

A: Well, all countries have TM—has to be nation by nation. As a consumer, she’d like to know source.

Laura Bradford: Should we hang back because these are new uses? People may form expectations depending on how we regulate. In the beginning, some judges believed that search results were confusing because search engines were new. But then norms developed and most people aren’t confused by organic results. Aren’t you stacking the deck by saying that, for example, a stock price decline is a TM harm? That’s just a back door to saying the parody was effective.

A: She thinks it should be tentative and case by case. Practically, courts are willing to find consumer confusion with a 15% confusion showing, and that will harm true parodies. Stocks: she struggles with whether it’s actionable, though it is a harm (and there are several cases recognizing it as such, see Checkpoint Systems v. Check Point Software in the 3d Circuit).

Q: Because it’s up to private parties who have to pay for an action, there’s a large amount of unlitigated stuff—it’s serendipitous who gets picked on. From a First Amendment perspective, that may be a chilling problem.

A: Maybe the government should step in to protect consumers in certain circumstances—this is a very different situation from parody, cybergriping, etc.—you claim to be someone else and consumers (readers?) believe you. Markholders providing negative information about themselves have more credibility than other sources.

Zahr Stauffer, University of Virginia School of Law: Novels-for-Hire: Authors, Advertising, and the Law

There is a regulatory regime of sponsorship disclosure in broadcasting, though it’s flawed. But what of literature? Early stages of project thinking through differences between ads in literature v. TV/film. Intuition: differences with respect to authorship, consumer experience/engagement. Now covering branded entertainment--ad-supported literature. Includes novels with actual ads (like in magazines) in them. She distinguishes autonomous references (free plugs) from sponsor-induced references.

Embedded advertising: embedded within entertainment contexts—need not be stealthy, as with Wayne’s World drawing attention to its own operations.

Taxonomy: ads placed around fiction: literary banner ads; online content; way it worked in mid-19^th century England. Ads embedded in fiction: literary product placements. More common than we think, though not that common. Ads as fiction: sponsor-generated content. Sponsor often commissions an independent author. But “generated” points to the legal fiction that the commissioner is not just the owner but the author. It also sets up the concept in parallel with user-generated content, and in fact the rise of one is correlated with the rise of the other.

Many issues raised; she is focused on copyright but needs to think through the other areas. She has argued that embedded ads are beneficial elsewhere, but has no normative take on advertising in fiction here—she’s engaged in detective work.

Taxonomy is important not just generally but also because we have no regulation in place against which to measure what’s going on. We might think through different modes of ads in literature—is it anything like payola? Would we analogize to the FTC’s Endorsement Guidelines? Could it be an unfair trade practice? Or is it First Amendment-protected speech? Do we need new concepts, or none at all?

Three foundational assumptions: (1) product placements in literature, and branded entertainment in general in publishing, are more common than we think. Details are usually private; scandals occur when authors are outed and there’s a lot of downside for disclosure and no requirements of same. Since embedded advertising in general is such a large market, it would be surprising to think that publishing would be excluded, particularly with the rise of immersive/cross-platform marketing. Authors themselves are slick marketing machines: Stephen King, Janet Evanovich, James Patterson (former creative director at ad firm, presumably not reluctant to engage in marketing). Lots of brand references to cars in his books, but when something evil happens in a car it’s never identified by brand. Difficulties in publishing industry also provide incentive to turn to sponsorship. And a couple dozen reported instances.

(2) This practice will continue to grow sufficiently to be worthy to think through the implications. Declining print revenues and increased pressure to experiment with new revenue-generating models, e.g. digital textbooks. Increasing acceptance of product placement in traditional media to get revenue, even in hostile environments like Canada. Shift in digital platforms—makes the process more appealing for sponsors because inserted ads’ performance can be tracked/measured, and ads can quickly be updated. Imminently expanded regulation of embedded ads under various proposals might force advertisers to literature—that’s why cigarette companies went to novels in the first place, when they were kicked offscreen.

(3) Draws line between fiction and nonfiction. Harms differ.

Why use brands? Verisimilitude. Can be more distracting to viewers to have a brown car than a branded car. Brands can embed meanings. The meaning of the brands of beer Obama and his guests drank was a source of debate! Aesthetic results of using brands.

Ads placed around fictions: very common historically; probably originated with Dickens. Common in late 1970s to pay for placement in pulp novels. Authors often didn’t know. Showed up in Toni Morrison’s The Bluest Eye. One advertiser paid for 540 million paperbacks. Poised to grow exponentially with the Kindle, which is thinking about subsidizing through banner ads.

Embedded in fiction: Hemingway got a case of pastis for his references. More modern: references to Maserati earned the author a party at a dealership. Another author mentioned champagne in return for free champagne at the launch of his next book.

Sponsor-generated fiction: Susannah James, Love Over Gold: the untold story of TV’s Greatest Romance, Nestle’s Gold Blend (those googly-eyed coffee ads). Ken Casper, Running on Empty, NASCAR-sponsored romance. Entrenched in the kid’s market—the Oreo Cookie Counting Book; Herhsey’s counting book. Electrolux commissioned a novel about a guy who hates housework and whose girlfriend dumps him; features tips on cleaning. Lexus-brand fiction: “Black Sapphire Pearl” was named after a paint style; well-known authors like Jane Smiley and Curtis Sittenfield were commissioned for the followup, “In the Belly of the Beast.”

These are explicitly efforts to reach valuable demographics. She assigned “Black Sapphire Pearl” to her law & literature class on the Lexus website, wanting her students to encounter it on the website. Four days before class, it disappeared. Mark Haskell Smith, the author, doesn’t list it on his website as a work he wrote.

Concerns: consumer deception, which she finds more worrisome than in broadcasting, where consumers are more savvy about placement. Authors: preferences under patronage systems; some may like them, but there are tradeoffs as compared to a market system. These works are trying to be works for hire. But do they fit into the model? Congress envisioned WFH to be a narrow class because it’s owner-friendly but author- and user-unfriendly. If we see this area get a lot of traction, we might be putting a lot of pressure on the WFH category.

Kindle amplifies these questions—we may see banner ads exploding; we may see ads be target-sensitive with different ads for different copies; we see Stephen King commissioned to write a novella for the Kindle that heavily integrated the Kindle and that was initially available only on the Kindle.

Errol Meidinger: What kinds of authors do you expect here? Already high-profile? Different implications than if it’s a way for a poor struggling author to get paid.

A: That’s one research question—is this helpful or a windfall? There’s a range. She’s seen not very well known authors get a 2-novel deal to write about Ford; Fay Weldon, already a defined brand herself, got commissioned. James Patterson is hard to figure out. Arguably he has some sort of placement deal. They don’t want you to know what the deals are. Recently, some teen novels have come out about this—think that the demo doesn’t care.

My Q: Say more about the parallel relationship you see between user-generated and sponsor-generated content. Also how do you deal with franchises like Nancy Drew or Gossip Girl or even Star Trek tie-ins?

A: She thinks that the question is whether the marketing is driving the content. Is it a pure aesthetic dictate? She doesn’t think that aesthetics can be free from commercial constraint, but she looks for actual consideration provided. Gossip Girl, filled with brands, is the way it is because it’s seeking a placement deal. It’s a way of signalling adaptability for screenplays.

Conference on Advertising and the Law, University at Buffalo Law School

Opening Remarks

Mark Bartholomew, Buffalo Law: F. Scott Fitzgerald said that advertising’s contribution to humanity was “exactly minus zero.” But TMs are ads and they’re useful. And sometimes we just like ads, e.g. the Superbowl. Google and Hulu use ads and make our life better. Today we have an interdisciplinary group talking about ads and what they do in the world.

Panel #1/Advertising’s Social Consequences

Marion Crain,Washington University School of Law: Consuming Work

Over the last several decades, the American economy has shifted from work-centered to consumer-centered. So we can have a “jobless recovery,” measuring consumption instead of employment. Branding has replaced ads, designed to persuade consumers to choose one virtually identical product over another. Advertising speaks but brands act, erecting a frame of reference for trust, loyalty, basis for brand extensions. Iconic brands influence and innovate cultural change. They represent social consensus about societal values. Marketers say, instead of asking consumers what they want, study social trends and look for cultural contradictions/breaches in social fabric that could be exploited by a product. Reagan era: This Bud’s for You—aimed at working-class men, designed to deal with anxieties of blue-collar men over outsourcing, a new phenomenon.

Branding is usually associated with products, but also increasingly with services, and it’s here that branding invades management, as it must because employees are part of the brand. They interact with consumers to deliver on the brand promise, portraying the brand and symbolizing corporate identity: front-line ambassadors. Employers must control and manage employee identity to communicate the brand effectively. Also, service work is fundamentally embodied: can’t separate the work from the workers. And those bodies have cultural and social attributes: race, gender, class, particular physical characteristics.

Dramatic rise in aesthetic marketing and aesthetic labor, triggering emotional associations at a precognitive level—things look/feel good and that’s why we choose them; the choice then signals our identity—I like this brand becomes I’m like this brand. Aesthetic marketing requires aesthetic labor: employees have to look and feel like the product/service. Thus, an increasing pattern of employee selection for aesthetics and not just skill. Service businesses also develop and commodify the workers once hired through training, appearance regulation, discipline and reward systems designed to produce an appealing service experience—hear a smile in the voice, see the expected brand image. Particular emphasis on middle-class look, with racial and gender connotations as well as meaning for mannerisms and modes of speaking. 93% of retail/hospitality employers in Glasgow searched for and developed aesthetic characteristics in employees.

Particular innovation: wearing the brand, work and consumption intertwined on the bodies of employees. This is especially exploitative. Significant effects on culture. Most pronounced in retail fashion, where it’s a practice to require employees to wear/model the brand as well as sell it. Employees not unionized, easily fired; used as walking billboards/talking statues. All employees are embodied, but wearing the brand communicates a prior act of consumption while performing the labor of selling. So it’s smart marketing and it has a powerful impact on employees’ identity. Shapes employees beliefs about the brand and induces/compels their participation in value chain in which they have to shop for the most flattering styles, figure out how to accessorize the look each day, and continue to respond to trends to constantly update their wardrobes. This also determines how others respond to the employees, because we perform so much identity through dress.

Retailers require employees to buy the clothes, albeit at a substantial discount of 25-75%. Employees are often drawn from the consuming base—Abercrombie & Fitch is notorious for recruiting off of the sales floor. Buying the clothes creates a captive branded community of consumers. Of necessity, they carry the clothes out the door. Employees generally don’t object; may want to align themselves with the brand. They appreciate the clothes.

So what’s the harm? First, qualitatively different from anything employers have done because of its powerful impact on identity and culture. Long history of (exploiting) employees as consumers: Henry Ford who paid his workers enough to buy his products; the Big Three automakers developed a system of employee friend & family discounts, which were incredibly profitable. Textile mills established company stores and company housing. Employment conditioned on buying and living there; employers even issued script redeemable only at the store. But there’s still a separation between identity and consumption. They don’t convert physical and cultural attributes of the workers into firm profits. Not so stereotypical.

Employers reinforcing a middle-class look and attitude are valuing employees for their cultural capital, not their human capital. Employees are being trained in look and feel, not real marketable skills. This contributes to income inequality and reduces class mobility. The captive branded audience is fundamentally dependent on the employer. Creates “addicts.” Erodes boundaries between work and leisure by extending the selling past the time the worker leaves. Excludes people based on race and gender—suits against Abercrombie & Fitch. Cultural capital deployed in sale of brand in ways that conflict with discrimination law—whiteness as property, on which the employer trades to increase profits. Employer taps into stereotypical assumptions about what whiteness means—reliability, power, choice, consistency and reputation. Transforms cultural narratives into action.

All this marketing is sold to employees and the public as the product of free choice. Reinforces assumptions about the power of the market, making collective resistance more difficult.

My Q: Relation to sex work, which is illegal/not corporatized but also exploits the body?

A: Sex work is work. The most exploited sex workers are so because it’s so hidden. In this context, the real work is hidden: the consumption is explicit but where do the dollars come from to buy these things? Employers are hiring for a middle-class look, but the employees are paid less than minimum wage by the time the deductions are made from their paychecks to pay for the clothes. Some have sued under the labor statutes when that occurs—but then there’s a big legal question of what counts as a uniform.

Q: How would this be different from a cultural studies perspective? What does law bring to this?

A: The law is structured to deal with exploitation segregated by subject: sex or race exclusion is actionable under Title VII. But they overlap, and the issue of uniforms shows this. How do you deal with employees who end up buying lots of clothes from the brand? Donning/doffing regulations: should employees be paid for the time spent putting on/taking off uniforms—courts really reluctant to extend that past blue-collar workers to white-collar workers. If paid for putting on “uniform,” why not for commuting time? Requirement to wear the brand might be a wedge situation where employees could get some compensation.

Q: Benetton ads mobilize race and ethnicity in a particular way—comment?

A: Similar to exploitation of Native American identity as mascots by sports teams—mirror image of her argument. Replicating subordination and profiting from it. Her project is the exploitation of white identity. (Ads v. real workers—similar to composition of hospital staffs on TV medical shows versus in the real world.)

Bartholomew: What’s the potential for resistance in this area? People rework school uniforms subtly. Can the Gap employee do so as well?

Q: A lot of research exists on this. Disney employees are heavily regulated in appearance and public interactions, yet they resist in subtle and not-so-subtle ways. But what intrigues her is that mostly employees don’t resist. They resist most when regulation is very specific and detailed. If you’d be sent home for failing to shave your legs recently enough, then backlash may occur. But in the US, with the way we valorize individual choice, the obscuring of the coercion here—where employees are allowed to pick their clothes—makes the clothes not a uniform and also makes resistance more difficult because consumption is fundamentally an individualistic, solitary activity.

Laura Bradford: What about the employer interest in having a uniform appearance? There’s some utility to consumers knowing what the image is they’re buying into. Nobody has to work in fashion—there are other jobs. But we now have nonwhite images of style; why not allow stylish people of all ethnicities to find jobs in retail?

A: Sure, there are reasons to create solidarity/communicate to customers—Wal-Mart’s blue aprons. What’s bothersome is the complete and all-encompassing control over the employee’s appearance. Choice to work: this goes back to how marketers draw brands from the culture—not just reflecting but innovating. The range of choices is constrained by the way marketers decide what they want to sell. And there are significant wage disparities between wages paid by upscale white fashion retailers and what minority employees are able to command.

Dianne Avery, University at Buffalo Law School: Ladies in Red: The Selling of Gendered Work

Focuses on airline attendants’ uniforms. Richard Tyler designed uniforms for Delta—“signature” red dress. Set off against men’s dark but stylish suits. Makes the women “stand out.” New, fresh, sexy image—and some flight attendants, through their union, object. It’s a story of technological and organizational methods used to deliver the brand internally and externally, and the legal, social and psychological relationships between producers and consumers. It’s also the story of one airline’s attempts to boost revenue by reprising days of glamor and sex in flying—anachronistic but perhaps understandable in a world where the public knows that airplanes can be weapons of destruction. The female employees who are the right size, and thus have the red dress option, perform sex appeal as part of the Delta brand.

Delta bought Northwest, making the largest carrier in the world. The attendants and groundworkers at Northwest are unionized, while those at Delta aren’t. Unionization of the merged entity is unclear. Big challenge: build a single airline with a single brand image. Delta’s spent a lot of money on new food and wine, new paint for planes, new uniforms. Nostalgia for the hypersexualized ads of the 1970s with scantily clad female flight attendants.

Stewardess couture first evolved within narrow boundaries: demure, tailored. Shift in the 1960s for all advertisers, including airlines; sex became a way to tout the expected gratification from a service: the apogee/nadir being Southwest Airlines in 1971, with attendants in hot pants.

Richard Tyler is a celebrity designer known for his sexy designs. In 2004, commissioned to design Delta’s clothing. Sent the Delta line down the runway in 2005 along with his couture line, unprecedentedly. A trend to have high fashion designers do airline uniforms (as well as other service industry uniforms). Past designer charged with redesigning British Airways uniforms said he wanted to bring glamor back: the girls will look very sexy and the men will look like strong heroes. Union replied: attendants are safety personnel; and revealing uniforms would lead to more sexual harassment and air rage. Ultimate collection was quite conservative. Big innovation: women had a choice of low-waist boot-cut trousers or skirts.

Another piece of the puzzle: the uniform industry. More than 5 million people wear Cintas uniforms to work every day. The company is aggressively anti-union; violated living wage ordinances in Los Angeles and Alameda County; sued many times for wage & hour violations, OSHA violations, antidiscrimination law; accused of running sweatshops. But it wins awards from the National Ass’n of Uniform Manufacturers and Distributors for creating good images. Delta’s manufacturer dresses 1 million employees every day.

Delta has a style clinic: employees get to pick/mix and match elements of the uniform. The problem: NW flight attendants began to wear the collection in March 2009, and learned that the red dress is only available through size 18, but every other piece of the collection in other colors (dark blue) is available in other sizes. Union filed a grievance. An injustice for one is an injustice for all: let employees decide. The red dress symbolized a reimposition of humiliating weight (and age, marriage, pregnancy) restrictions. Essentially a form of sex plus weight discrimination. (With the added fillip of choice.)

There’s also a separate Red Dress campaign for heart health, to which Richard Tyler submitted the Delta red dress. There’s a First Ladies red dress collection, a Mattel doll in a red dress, etc. 61% of American women now recognize the color red as associated with heart health. Irony: according to psychologists, red signifies sex to men. So what does this brand mean? Celebrating women’s health and beauty; aphrodesiac for men; etc.?

Crain: How much is about classing up air travel, especially in the era of cattle-car travel? Compensating consumers for the bad experiences; making employees feel better about their jobs because of the opportunities for choice.

A: Reaction to 9/11—a way to reglamorize travel. And the flight attendants apparently do like it, though they have to buy the uniforms themselves ($150 allowance per year; one vest costs $50). How the uniform is worn is highly regulated.

Q: In Japan, red means something different—it’s an international airline. Cultural analysis would help—red may have certain key meanings across cultures.

A: China Airlines also puts attendants in red—used differently in different places.

Q: Note also Air New Zealand ad with attendants in body paint.

A: Hooters Airline, a short lived experiment. Blurring of work and play.

Q: Paper mentions Song airlines, designed to appeal to mothers, in the paper—what uniform did they think would do that?

A: They sexed up the men with pajama-like outfits, put the women in sportswear.

Q: What’s wrong with the sizes?

A: Sends a message that there are different classes of employees. The workers who can wear the red dress and be the brand ambassador—the “signature” dress—will be preferred.

Mark Bartholomew, University at Buffalo Law School, State University of New York: Advertising and Social Identity

Why do ads work? Standard answers: Attractive people, cute animals, music, humor, etc. Exercise: describe yourself, then discuss your favorite brands—look at the links between brands and identity. What are the markers in ad campaigns that make us feel that brands speak to us? Marketers aren’t just interested in our attention, but in our emotional investment. How do ads influence our sense of self, and what are the consequences? Previous papers show the employees being affected by ad campaigns; he is interested here in consumer effects. Especially important in an age where ads are touted as the savior of the content industry.

How is identity formed? How does advertising piggyback on this process? What are the consequences? What are the appropriate regulatory moves?

Case study: ads to the gay community, because it’s been a darling of marketers since the early 1990s. Breathless pieces on how it’s an untapped niche for making money. He’s not arguing that ads influence being gay (whatever that means); they influence the meaning or construction of that identity. Doesn’t mean to imply that there’s only one gay identity, but using “gay” as shorthand because marketers do that.

Identity formation: identities aren’t innate, but we actively shape them. But identity is often formed subconsciously, from surrounding contexts. Like birds, if we’re near twigs and sticks we’ll make our nests out of twigs & sticks, but if we’re near People magazine we’ll make our nests out of People magazine. We define ourselves by group memberships—academic, Boston Red Sox fan. We take on the behavioral patterns and norms of people in those groups. Two-step process: self-categorization (looking around at potential models and seeing what fits) and comparison. We then look for metrics of difference favorable to our choice of group.

Ads fit in well as part of identity formation. They surround us. 3000 ads per day per American. Advertisers are also very skilled at subconscious, implicit appeals. And today they typically engage in niche marketing, a change from 50 years ago where appeals were more broad-based (patriotism, general insecurities). Triggered by the rise of identity politics and technology, which allows massive databases/sorting. Does that represent just an increase in welfare, more to choose from? Ads show archetypes.

Gay community-focused ads: depict white affluent males. Leaves out lesbians, people of color. Ads have been very conservative, depicting sexuality in essentialist manner, 100% gay or 100% straight, but monogamous anyway. Leaves out lots of people.

One might argue: there are other non-ad role models—friends, coworkers. This niche marketing, however, involves a coopting of the spaces groups normally use to engage in self-categorization. That’s Niche Marketing 101—the importance of infiltrating once less-commercialized group spaces. E.g., gay bars, gay bookstores, gay-oriented publications—important to developing a social group, allowing self-categorization. But now you can go to Amazon.com and still get something targeted to you. Gay publications that used to focus on gay identity and civil rights now talk about what it takes to participate in the gay lifestyle, which is an ad message.

Another important space for engaging in categorization: in-group codes used to identify one another, particularly important for groups with a history of discrimination. Words like pride/queer, or the rainbow flag. Advertisers appropriate these things, as niche marketing theory advises them to do to signal to the consumer that the consumer is being addressed in that social role. So there’s Pride brand beer. But that deprives pride of its power as signifier of difference—maybe it’s an outsider trying to tell you something. Shrinks ability to categorize self outside the market.

Second part of identity formation: comparison with other groups. The metric advertisers emphasize over and over—while they tell you your group is better than others—is trend-setting. Gays are supposed to be trendsetters. It’s a myth; market researchers told companies that gays were early adopters, but that was faulty statistics; gay market isn’t as affluent or style-conscious as was thought c. 1992. Problem: it costs a lot to participate in trendsetting lifestyle. You can’t buy your clothes at Wal-Mart. Queer Eye for the Straight Guy: constant emphasis on taste that gay men have to which heterosexual men have insufficient access—must consult a gay man. This is linked to class. A lot of people without economic/cultural wherewithal but who want to be part of the gay community feel a lot of frustration that they can’t be what advertisers tell them they should be.

Implications: it makes sense sometimes for emotion to guide decisionmaking. But there might be collateral damage. Thoughts: use law to expand identity models. Greater need for fair use/First Amendment defenses when people tweak a brand to serve a different identity purpose. Most of us don’t process ads very much, though, so there may be little reworking of them. Counterintuitively, maybe there should be less protection of advertisers and their constructions and more allowance for confusion. We tend to rely on what the advertiser tells us, but if we were more conditioned to think ads were unreliable maybe we’d engage with them more.

Q: Instead of identity, what about talking about subjectivity? Might be helpful. Exercise: show men across the life cycle in ads. Gay men in ads don’t have a childhood or an old age; they deal with financial security and AIDS.

Sonia Katyal: Couldn’t you also argue that ads function to expand a lot of models? Every time a market gets identified, advertisers seek to fill/represent that niche and form it. Some results are negative, but some positive. As a reaction against gay male model, new businesses/ads have emerged representing lesbians. More trans-positive ads now. Normatively, is it possible/desirable for niche communities to escape ads when everyone is so pulled in?

A: He’s not sure how much escape is possible. There may be more nuanced advertising; it’s impossible to be comprehensive about this, but his take is that there’s still a conservative/stacked depiction despite some more sensitive campaigns.

Q: Brand hijacking: Timberland boots adopted by young black men, against the wishes of the brand.

My comment: I don’t think allowing uncertainty about factual claims (allowing greater confusion) would help if the problem in identity formation is the emotional, nonrational/preconscious part of ads—factual claims seem orthogonal to identity operations. Katya Assaf on cultural symbols v. brands might be a good source.

Class action inappropriate where regulation is required

Ramirez v. Dollar Phone Corp., --- F.Supp.2d ----, 2009 WL 3747215 (E.D.N.Y.)

Judge Weinstein delivered a fascinating opinion in this putative class action about fraudulent marketing of prepaid phone cards, notable for its recitation of problems with such cards and attempts by regulators to deal with them—including descriptions of other cases, FTC notices, and proposed legislation—that reads more like a law review article than a decision. He ultimately concluded that the court was powerless to do anything for these plaintiffs. I don’t know enough about class actions to know whether there’s precedent to dismiss a class action because only regulatory action can work—I’d love to hear from anyone who knows more.

Ramirez sued defendants under the consumer fraud acts of eleven states for deceptive practices. The court found that a class action was not superior to other available methods. “In general it is inappropriate to deny those wronged civilly a fallback court-supervised remedy when the administrative law segment of our justice system has neglected to provide an available superior form of protection. There are, however, instances where the litigation remedy is relatively so inferior as to warrant denying it altogether in the hope that administrative justice will prevail. This is such an instance.”

Background: “Deceptive and abusive practices in the prepaid calling card industry have been widely documented.” The industry is multilevel, and it’s hard to tell who’s responsible for setting rates, disclosing information, etc.—there are a number of middlepeople before purchased minutes turn into calling cards. Agencies and researchers have found “widespread discrepancies between the amount of calling time claimed in advertising and marketing materials, and the calling time actually available to card users. In tests conducted by the FTC in connection with recent enforcement actions, the cards were found to provide half or less than half of the advertised minutes.” The plaintiff, for example, bought a $2 card to call El Salvador; he was promised 48 minutes at the beginning of the call, but it ended after 25 minutes because the card was out of money.

Purchasers are typically poor and can’t afford traditional phone service. Many of them are recent immigrants who don’t speak English, and are thus particularly vulnerable. Deceptive practices in the industry have been the subject of “extensive, repetitive private litigation as well as repeated enforcement actions by the FTC and several state Attorneys General.” At the court’s request, the federal government submitted a summary of the actions the FTC and the FCC had taken in the area so far, from which the court determined that “the federal government has made substantial efforts to assist purchasers of phone cards by its publications and actions to prevent misleading conduct.

Yet, the federal government is inhibited in providing full and uniform protections by a lack of explicit authority.” There’s a proposed federal Prepaid Calling Card Consumer Protection Act of 2009 to deal with the inconsistent patchwork of current regulations resulting from the FCC-FTC split in authority over telecommunications providers (carriers) and advertisers (wholesalers, distributors, and retailers). “While the FTC seems to have been active in policing the calling card industry, as is demonstrated in the list of its enforcement actions, it seems not to have the authority to take any action against those the plaintiffs claim are ‘the real culprits’ in the deceptive practices, the carriers.”

In the meantime, the FTC has brought several deceptive practices enforcement actions against prepaid card providers; orders and proposed orders involve both money and detailed disclosures and other restrictions, including ongoing testing to make sure rates are accurate, going forward. State AGs have been active as well, though there’s no uniformity in state laws specific to prepaid phone cards. “The problem posed in controlling abuses is thus not only that there are different levels of specificity, but that one state often regulates conduct that another state does not.”

There are also at least 21 other private actions filed in federal court since 2003 over prepaid calling cards; some have been dismissed without prejudice, many settled, and some are still pending. Proposed and approved settlements vary significantly—one court approved a settlement providing $2 million in charitable donations plus a $20 million refund pool. That one also has extensive regulations on the defendants’ future conduct, including disclosures and review by the NJ AG’s office. Another approved settlement involved $300,000 in charitable donations, $200,000 in discounts for class members, and up to $3.7 million in refunds, but no constraints on future behavior. And so on.

The sale of the specific card at issue was governed by NY’s prepaid calling card statute, and the defendant who provided service for the card, is subject to consent orders from NJ and Florida. Defendants, who sell in other states as well, may be subject to conflicting statutory and regulatory mandates, plus the FTC, plus three other pending private lawsuits; plaintiff’s counsel is a repeat player using the same plaintiff, filing 9 similar suits against prepaid calling card companies.

Plaintiff argued that, company by company, “we are reforming this industry by extending the limited statewide regulation that currently exists on a nationwide basis through agreed upon 23(b)(2) injunctive relief.” It was better to use a patchwork than to do nothing. The court respectfully disagreed that “this somewhat dysfunctional private method of control of a major national and international communications link through repetitive civil litigations is appropriate.”

Fundamentally, the court concluded, the allegations presented issues that should be resolved on a uniform, national basis, not by piecemeal state-law litigation. “While utilization of cy pres or the fluid recovery doctrine might provide a viable remedy with some benefit to the class and to society, this is the unusual situation where the present action’s limited patchwork repairs are not worth the costs or benefits of allowing the case to go forward.” Rather, “[a] sprawling, hit-or-miss, costly, and confusing series of civil litigations across many states is an absurd way to control a vital national and international form of communication.”

The court found it “intolerable” that a multi-billion-dollar industry affecting the lives of millions of vulnerable consumers, “many of them low-income or recent immigrants to whom telephone contact with loved ones abroad is vital to their own and their families’ health and happiness,” was so unregulated, noting that the industry’s problems did not seem to be limited to a few bad apples but were structural. And the chaotic regulatory structure is no picnic for service providers and distributors either. Consumers need uniform standards that will enable them to compare cards, especially since many of the relevant consumers are transient.

But this lawsuit wasn’t the solution; it would likely “compound the problem and encourage perpetuation of an ineffective regulatory regime that is confusing and incomplete, that is unduly burdensome for the industry, and that provides neither effective protection nor a suitable remedy for most injured consumers.”

It would be possible to administer this proceeding with some “minimal benefits” to the class, though meaningful recovery directly to individual class members would not be possible in view of the small sums involved and the costs of distribution. Relief would have to rely on cy pres (“as close as possible,” a doctrine justifying things like donations to charity) and fluid recovery along with injunctive relief. Appellate courts have generally rejected academic and district court endorsements of cy pres and fluid recovery. (I detect the sting of past reversals!) Injunctive relief would mire the court in “inappropriate” continuing supervision of the industry.

In this context, the class action was not “superior” to other available methods for fairly and efficiently adjudicating the controversy, and final injunctive or declaratory relief would not be appropriate respecting the class as a whole. The only adequate way to protect the class’s rights would be through federal regulation and enforcement. “To use the truncated powers of a misshapen 23(b)(3) class action to address the issues raised in plaintiff's complaint would be unfaithful to the premise and reason for the class action--considerations of equity and good judgment.”

Software ranking mere opinion, not fact

ZL Technologies, Inc. v. Gartner, Inc., 2009 WL 3706821 (N.D. Cal.)

ZL sued Gartner for false advertising, defamation, and related torts based on its ranking of ZL's software. The court, reasoning in a way that certainly makes Google happy, concluded that Gartner's aggregation of opinions was itself mere opinion, not falsifiable fact.

ZL makes software for large enterprises to store, index, search and purge electronic data. It alleged that it’s avoided seeking large amounts of venture capital in order to retain its independence and make decisions for customers’ long-term benefit. It also alleged that it has the “strongest product offering in the marketplace.” Gartner identifies itself as “the world’s leading information technology research and advisory company,” and it provides analysis of the IT industry to its clients, including product recommendations, advertising that it has the “combined brainpower of 1,200 research analysts and consultants who advise executives in 80 countries every day” and other sources of expertise. Gartner has done research on email archiving, which is a method of storing “large amounts of emails (and attachments) by ... offload[ing] and stor[ing] those emails in a separate repository which is much cheaper to maintain than a primary email server.”

ZL sued over several allegedly false or misleading statements. First, ZL’s ranking in Gartner’s Magic Quadrant (MQ) Report on IT vendors, which allegedly is a “key revenue” driver for Gartner, and heavily influences its customers. The Report claims to accurately rank IT vendors for enterprise buyers, dividing them into four quadrants in declining order of desirability: Leader, Challenger, Visionary, Niche. The axes measure “ability to execute” and “completeness of vision,” which stand for about what you’d think they stand for. ZL alleged that its designation as Niche was derogatory because Gartner’s customers accept that as a “warning.” Since ZL was first ranked in 2005, Symantic has been ranked as a Leader, creating a “perceived vendor gap” which is allegedly false or misleading because of ZL’s superiority, outperforming Symantec by over a thousandfold in search speed and improving accuracy, etc. In fact, ZL alleged, the MQ report is “highly subjective” and lacks mathematical or other sound basis; further, Gartner didn’t engage in any independent testing. Nor does Gartner disclose its criteria or relative weighting, resulting in arbitrary and misleading statements. ZL alleged that Gartner was swayed by Symantec’s puffery; Gartner overweighs good sales and marketing, leading to a bias in favor of larger companies with bigger marketing departments. Real research couldn’t support the statements, meaning that Gartner knew or was reckless as to the falsity.

Along with the quadrant ranking, the 2008 MQ Report warned that, “ZL is primarily a product and engineering-focused company. To remain [a] viable vendor in the market, the company must gain greater visibility and more aggressively expand its sales channels.” In addition, ZL alleged additional negative statements, including that the “ZL Products and Symantec’s Enterprise Vault (EV) ‘were the same.’”

Gartner’s statements allegedly caused ZL to lose business, including from the Department of Veterans Affairs, which relied entirely on the MQ Report; ZL had other specific examples. According to ZL, Oracle Corporation “complains that it gets ‘Gartnered’” when it attempts to resell ZL products.

The Lanham Act claims foundered on §43(a)(1)(B)’s standing requirement. ZL didn’t allege a competitive injury—one that harms the plaintiff’s ability to compete with the defendant. ZL argued for a “reasonable prudential standing approach” such as that followed by the 3^rd, 5^th, and 11^th Circuits (comment: argh). The court declined to adopt such a standard. Even if the court did apply that approach, ZL failed to explain how its alleged injury was one of the type Congress sought to redress in providing a private remedy under the Lanham Act. (The court also noted that without competition, it would be very hard, if not impossible, to show that the statements at issue were “advertising” given the generally accepted judicial test for what constitutes Lanham Act “advertising and promotion.”)

Even assuming standing, ZL failed to identify any actionable (falsifiable) statements. Allegedly false statements that Gartner’s research “is ‘high quality, independent and objective research’, (b) it is a ‘thought-leader’ in information technology, [and] (c) it can ‘show how to get the best return on your technology investment,’” were mere puffery.

The other state-law claims all depended on the conclusion that the challenged statements were false or misleading claims of fact, but the court concluded they were all nonactionable opinions, so the motion to dismiss was granted as to all of them.

An opinion is protected by the First Amendment. In the Ninth Circuit, courts examine “(1) whether the general tenor of the entire work negates the impression that the defendant [is] asserting an objective fact, (2) whether the defendant used figurative or hyperbolic language that negates that impression, and (3) whether the statement in question is susceptible of being proved true or false.”

The court thought that the general tenor of the MQ Report negates the impression of an objective factual claim in the “Niche” assignment. Gartner’s cover page for the email archiving review states “The opinions expressed herein are subject to change without notice.” While not every disclaimer will absolve a defendant, here this does contribute to a general tenor, along with statements that the Report reflects Gartner’s “view” based on “more than 1,000 conversations over the past year with Gartner customers, as part of [its] inquiry service, survey responses and updates from the vendors in the March/April 2009 time frame, and over 70 conversations with vendor-supplied references in March and April 2009.”

Gartner also identifies the bases of its opinion, which are clearly not product performance testing but conversations and surveys. Moreover, the “axes” along which vendors are rated—“ability to execute” and “completeness of vision” contribute to the general subjective tenor. These are fuzzy terms are (sort of) defined in the text of the Report, but attributed again to conversations and surveys. While subcriteria like “quality of goods” and “market responsiveness and track record” might be amenable to objective testing, Gartner nowhere claims or implies it has engaged in such.

ZL argued that Gartner’s claim to offer “highly discerning research that is objective, defensible, and credible to help [customers] do their job better” (quoting Gartner’s website) implied objective assertions of fact. Even so, these terms do not imply factual assertions. (What, then, does “objective” mean? Gartner says it just means its methods are “independent and unprejudiced.” Defensible means “capable of being defended,” and “credible” reflects Gartner’s belief that it’s right but can’t reasonably be understood as a statement of fact.) Anyway, sophisticated readers wouldn’t infer that Gartner’s rankings were more than opinion.

What about the specific content and context, including the use of figurative or hyperbolic language? ZL argued that the absence of hyperbolic language and the presentation of “sober, technical evaluations” supported its position. But the ratings axes are subjective on their face, so the court wasn’t convinced.

Finally, falsifiability: There was no allegation that Gartner actually said that ZL is a bad choice, merely that consumers would infer the same from its placement in the Niche quadrant. This placement can’t be proved true or false, but reflects ZL’s disagreement with Gartner’s weighing of criteria. In fact, Gartner said some very nice things about ZL, including “great product performance as well as good prices and consistent support” and that ZL “has large deployments with customers that are happy with product features, scalability and efficient use of infrastructure resources.”

ZL alleged that its Niche designation was impossible to reconcile with its product performance review, but it didn’t score well in “Product/Offering Strategy ... Geographic Strategy ... Marketing Execution, and Sales.” This difficulty reflected the reality that a MQ rating isn’t a fact that can be proved true or false, but is based on weighing multiple criteria.

The other allegedly defamatory statements were also opinions. “ZL is primarily a product and engineering-focused company. To remain [a] viable vendor in the market, the company must gain greater visibility and more aggressively expand its sales channels,” clearly couldn’t be proved true or false. Nor was the statement that ZL and Symantec’s products were “the same” defamatory given Symantic’s prestigious Leader rating, and anyway that was nonactionable opinion.

ZL argued that liability was still possible if the statements of opinion implied the existence of additional undisclosed facts. But these statements didn’t imply any such thing.

Additional hurdles for the state law claims: California’s UCL only makes restitution available, which requires the defendant to have benefited from the actions that resulted in the plaintiff’s lost. But there was no allegation that ZL’s lost money went to Gartner in any way. Moreover, the court read California case law to require that a plaintiff demonstrate its own reliance on false statements to recover under the UCL, rather than third-party reliance that then hurt the plaintiff.

And finally, there was a question whether MQ reports constitued advertising. Under Kasky v. Nike, courts look to the speaker, the intended audience, and the content of the message. Were the reports commercial speech? They didn’t promote Gartner’s services—they were Gartner’s services. They weren’t factual representations about the speaker’s business, and (though the court for some reason didn’t say this outright) they weren’t commercial speech.

ZL wanted leave to amend because of new facts about board and shareholder overlap between Gartner and Symantec, and allegations that Gartner maintains business relationships with some of the companies it rates, some of whom pay Gartner hundreds of thousands per year for services, promotion, and participation in Gartner trade shows. Though the court thought that evidence of bias could be consistent with allegations of a flawed methodology, none of that changed whether Gartner’s statements were non-factual opinions, even if Gartner is really a gun for hire; under Iqbal and Twombly, ZL didn’t seem likely to be able to make its claim plausible on its face.

This gets to a question I’ve been wondering about with respect to the FTC’s new endorsement guidelines: the endorsement rules don’t exclude puffery. The FTC seems to hold—quite reasonably—that an endorsement from someone paid to puff who doesn’t disclose the relationship may materially deceive consumers. I think this is empirically sound, but it creates a bit of an embarrassment for the general theory that puffery doesn’t affect purchasing decisions. If Gartner really were a mere sockpuppet for Symantec, wouldn’t the appearance of independence make its endorsement material to consumers in a way that, at least, the FTC Guidelines would recognize, and therefore state false advertising law might recognize as well? Whether defamation law would accept the same conclusion, of course, is another question.

Nonetheless, given the 9^th Circuit’s strong policy favoring amendment, the court did grant leave to amend with respect to everything but the California statutory (UCL/FAL) claims and negligent interference with prospective business advantage (which requires some sort of duty between plaintiff and defendant, usually related to a contract), as to which amendment seemed futile regardless of additional factual allegations.

7th Annual IP/Gender: Gender & Invention CFP

IP/Gender: Mapping the Connections

7th Annual Symposium, April 16, 2010
American University Washington College of Law

Special Theme: Gender and Invention

Sponsored by
American University Washington College of Law’s Program on Information Justice and Intellectual Property and Women and the Law Program
Journal of Gender, Social Policy & the Law

In collaboration with Dan Burk, Chancellor’s Professor of Law, U.C. Irvine

Deadline for submission of abstracts: October 30, 2009

The 7th Annual Symposium on “IP/Gender: Mapping the Connections” invites proposals for papers on gender issues relating to the production and use of inventions, broadly defined. Appropriate topics might include: gendered patterns in the history of invention or creation; gendered regulation of inventive activities; gendered models of individual and collective inventive activities; gendered aspects in licensing or assignment of technologies; and related subjects.

Introduction & Context

Over the past seven years, the IP/Gender symposium has provided a forum to examine and discuss research on gendered dimensions of intellectual property law. Because issues of gender in intellectual property have been under-appreciated and remain under-theorized, much of this work has been exploratory and pioneering. Topics discussed in past years have ranged from the impact of intellectual property law and policy on gender-related imbalances in wealth, cultural access, political power, and social control; creative production and gender; the effects of stereotyping and of actual and rhetorical feminization and masculinization of participant roles upon intellectual property stakeholders; the gendered development of IP doctrines and doctrinal categories; related issues in the teaching and practicing of intellectual property; feminist jurisprudential insights about intellectual property law; and female fan cultures and intellectual property.

We expect that the Spring 2010 symposium will again offer an opportunity to present and critique innovative research, related to the special theme, that is either currently underway or now under contemplation. As in previous years, we anticipate the program and the audience will be highly interdisciplinary, including historians, social scientists, legal academics, cultural scholars, and practicing lawyers bringing their disciplinary perspectives to bear on the theme. A limited number of spaces is available on the program. We would appreciate receiving abstracts by Monday, October 30, 2009. Papers will be selected for presentation and possible publication by November 15, 2009, and will be due by March 1, 2010. Please submit abstracts through the website identified below, and please contact any of us if you have questions. We would also be grateful if you would forward this notice to others you know to be working in or interested in this area. We look forward to hearing from you.

• Vicki Phillips, vfphillips@wcl.american.edu

• Josh Sarnoff, jsarnoff@wcl.american.edu

• Dan Burk, dburk@law.uci.edu

IP/Gender Mapping the Connections Organizational Details

• DEADLINE for submission of abstracts is OCTOBER 30, 2009 at 5:00pm Eastern Time US.

• To submit an abstract or project description for consideration, fill in the web-based form at https://www.wcl.american.edu/pijip/ipgender/proposals.cfm . Participants will be notified if their project has been accepted for presentation by November 15, 2009. For presenters, reasonable travel expenses may be provided if needed, subject to limitations on available funds.

• The symposium will begin at 6:00 pm Thursday, April 15, 2010 at the American University Washington College of Law in Washington, D.C. The symposium will convene from 9:00 am until 4:00 pm on Friday, April 16, 2010.

• To view programs from prior IP/Gender: Mapping the Connections symposia, please visit www.wcl.american.edu/pijip/go/events/ip/gender/ip/gender-mapping-the-connection

• Papers may be published in the American University Journal of Gender, Social Policy & the Law.

ABA's Private Advertising Committee: program announcement

I have been following with great anticipation the new ABA Antitrust Section’s Private Advertising Committee, a committee focused on false and deceptive advertising and marketing issues and litigation developments. Interested folks can join the Committee, sign up for programs and/or sign up for the discussion email list at this link.

It’s a good moment to mention the new committee, because it, along with the Civil Practice and Procedure, Economics and Trial Practice Committees, are sponsoring a teleconference:

Damages in Lanham Act False Advertising Cases: Theory and Practice

November 24, 2009, 2:30 p.m. to 4 p.m. ET

Panel summary: The Lanham Act provides for a variety of remedies against false advertising. Although injunctive relief is most common, damages, fees and costs can also be awarded. What measures of damages are available? What factors, other than falsity of the claims, must a plaintiff establish in order to obtain damages? What role do presumptions play in winning damages? Is any showing of causation required, and if so, how does one prove causation where advertisers themselves often have difficulty determining the effectiveness their ads?

This telephonic brown bag program will provide an overview of the legal bases for the award of money to prevailing parties under the false advertising provisions of the Lanham Act. The panel will survey the legal underpinnings of damage claims and discuss key cases in which damages were awarded, and denied. The panel will then provide a practical overview of how damages can be proved or rebutted through expert testimony in a hypothetical case.

The panelists are:

Christopher Cole, Partner, Manatt, Phelps & Phillips LLP

Professor Ravi Dhar, George Rogers Clark Professor of Management and Marketing & Director of the Center for Customer Insights, Yale University School of Management

T. Christopher Borek, Ph.D., Managing Principal, Analysis Group

Chris Cole will moderate. Recordings of this Brown Bag will be posted on the Section website Members Only area following the program and downloadable in an MP3 format, free of charge.

Criminal off-label drug promotion

Bloomberg story here. Wonder how the present First Amendment challenge to the off-label marketing rules will affect the ability to prosecute such acts?

The Cadillac of metonyms

The NYT on the continued use of "the Cadillac of X"--what the Language Log calls a snowclone--even as the value of the actual car brand has decreased. Among the interesting bits:

“The Cadillac of such-and-such” became such a popular form of praise in the late ’40s and ’50s that even advertisers of relatively small-ticket items borrowed the brand name to bask in its reflected glory. Hillquist sold “the Cadillac of all trim saws,” a Huffy children’s bicycle was “the Cadillac of the sand-pile set,” Rock-Ola was “the Cadillac of phonographs” and so on. G.M. didn’t object to this appropriation, since it only further boosted the status of the Cadillac brand. After all, according to a 1959 advertisement, Cadillac was “the world’s best synonym for quality.”

Cadillac might have known more about "dilution" than today's trademark lawyers.

Ark. Supreme Court rejects Nexium false advertising claim

DePriest v. AstraZeneca Pharmaceuticals, L.P., --- S.W.3d ----, 2009 Ark. 547, 2009 WL 3681868 (Ark.)

Plaintiffs sued AstraZeneca for false advertising of Nexium. Prilosec, Nexium’s predecessor, aka “The Purple Pill,” was AZ’s most profitable drug when its patent expired in 2001. In 2001, the FDA approved AZ’s request to market Nexium to treat conditions relating to gastro-esophageal reflux disease (GERD), aka heartburn. Plaintiffs alleged that AZ falsely marketed Nexium as “new” and “better” than Prilosec, when in fact they were very similar and produced similar therapeutic results. They alleged violations of the Arkansas Deceptive Trade Practices Act (ADTPA), along with common law fraud, breach of contract, promissory estoppel, unjust enrichment, and other state statutory violations.

The trial court dismissed for failure to state a claim. After appeal, the state supreme court affirmed.

The allegations: despite studies that showed similar benefits, Nexium ads touted it as “more powerful” than Prilosec, “clinically proven to heal more reflux esophagitis patients in a shorter period of time compared to [Prilosec].” But an FDA review concluded there was “no scientific basis for [AstraZeneca’s] statement that, compared to [Prilosec], [Nexium] offers a faster and improved resolution of heartburn symptoms and higher rates of healing in the treatment of erosive esophagitis.” Still, AZ advertised using claims such as “the proof is in the healing rates,” called Nexium “the powerful new PPI,” and invited patients to "Relieve the Heartburn. Heal the damage. It's possible with Nexium.”

AZ initially offered Nexium at a lower price than Prilosec and offered huge quantities of free samples to physicians, as well as a free-seven day trial for consumers with a prescription. Nexium’s sales shot past Prilosec’s, and AZ raised its price. At the time the complaint was filed, one pill of Nexium cost $4.46, while Prilosec OTC sold for $0.59.

Plaintiffs alleged various harms. For example, one alleged that, after seeing Nexium ads on TV, she asked her doctor for a prescription, which she received, but it eventually became too expensive. She shifted to Prilosec OTC and was satisfied. Others took Prilosec based on doctor suggestions or after seeing Prilosec ads; others alleged that AZ limited quantities of Prilosec after introducing Nexium and delayed introduction of the generic version so that they were unable to buy Prilosec; they believed Nexium’s superiority claims in its ads and didn’t buy other drugs to treat their heartburn.

The ADTPA bars knowingly false representations about goods or services. It has a safe harbor for any ads subject to and compliant with any rule, order, or statute administered by the FTC or transactions permitted under laws administered by a regulatory body acting under federal statutory authority. The trial court reasoned that federal law specifically permits drug manufacturers to promote their drugs in a manner consistent with and supported by the FDA-approved labeling, so all the challenged ads fell within the safe harbor. Here, the FDA-approved labeling includes results from clinical studies showing that Nexium 40mg did better than Prilosec 20mg—94.1% of patients showed healing at 8 weeks for Nexium 40mg versus 86.9% for Prilosec 20mg, and so on. (And yes, 20mg versus 40mg appears to be doing a lot of the work here, but the FDA hadn’t approved Prilosec 40mg for various indications, whereas it did so approve Nexium 40mg.)

Plaintiffs argued that the ads went beyond the FDA-approved labeling and thus beyond the safe harbor. The court disagreed. “[T]he FDA-approved labeling did, in fact, indicate that the approved dose of [Nexium] was superior to the approved dose of Prilosec at healing erosive esophagitis.” If the labeling supports the statements in ads, those statements aren’t actionable under the ADTPA. Though there was that pesky FDA medical review mentioned above, a medical review doesn’t reflect the conclusions of the FDA; the labeling controls.

The common-law fraud, promissory estoppel, and unjust enrichment claims failed as well. Fraud couldn’t be shown because AZ’s ads, being in accordance with their labeling, were not false or misleading as a matter of law. Likewise, the unjust enrichment claim was premised on the idea that customers bought Nexium because of misrepresentations, so AZ’s conduct couldn’t be unjust. And promissory estoppel failed for failure to allege the existence of an enforceable promise or reliance—“more powerful” etc. didn’t suffice because an ad isn’t a quasi-contractual promise, as required for the tort.