Alerts

AD-ttorneys@law – November 18, 2020

Alerts / November 18, 2020

In This Issue:

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Being the best means continually building knowledge and pushing forward. And in a world of digital disruption, consumer marketers can’t afford to stumble. To navigate today’s most complex issues, thousands of subscribers read the AD-ttorneys@law newsletter and blog and appreciate how our team of advertising, marketing and digital media lawyers distills issues and offers practical takeaways. Now that same team brings you AD-ttorneys@law, the podcast.

Our first podcast covers CBD Marketing. Cannabidiol, or CBD derived from hemp, is now legal under federal law, and is everywhere -- CBD perfumes, facial oils, cosmetics, gummies, chocolates, lotions, slushies, candles. BakerHostetler attorneys Randy Shaheen and Jack Ferry explain the legal issues companies should think about before they hit the ground running to enter the burgeoning market.

FTC Tries to Clean Out 25 Fake Disinfectant Websites

But all information about scheme masterminds has been wiped away

Less Is More

There are elaborate schemes out there – boy, have we covered them. Misdirection, shadowy behind-the-scenes actors, Russian-doll-nested business entities. Real puzzles.

And then there are schemes where the perpetrators are barely even trying.

The Federal Trade Commission (FTC) recently unveiled a complaint in the Northern District of Ohio against 25 separate websites – run presumably by the same people – that were engaged in the most backyard, low-rent, bargain-basement, basic scheme conceived since the invention of the Internet over a hundred years ago.

The defendants – whoever they are – were playing on COVID-related fears. They set up several websites that appeared to be related to well-known disinfection product brands like Lysol and Clorox (www.clorox-sale.com, www.elysol.com and www.lysolsales.com, to name a few). Consumers would search for the products, see one of the websites sporting all sorts of Lysol- and Clorox-brand art and products, and start purchasing. They were doubtless relieved to find disinfection products that have been in short supply since the COVID pandemic began.

The Takeaway

Unfortunately, consumers were charged for the products as soon as they offered their payment information but were never sent any of the goods they ordered – or occasionally, were sent unrelated and worthless items, like pairs of socks.

When consumers returned to complain, they often found that the site had disappeared. Of course, the scammers boasted no real connection to the parent companies of either brand, and the hosts offered false contact information to consumers and to the authorities.

The FTC’s complaint alleges violations of the Mail, Internet, or Telephone Order Merchandise Rule and seeks “an order permanently banning the defendants from their allegedly illegal conduct, as well as the disgorgement of money they collected through the scheme to provide refunds to defrauded consumers.”

Only problem is, no one knows the identity of the people behind the sites. They seem to have disappeared along with their storefronts.

Sometimes the simplest scam is frighteningly effective.

Intravenous Therapy Company Resolves Prickly COVID Allusions

Stay safe – keep coronavirus tags off your labels

Drink Water Maybe?

Uh … we just don’t get it.

We have a thing about needles. All during our childhood, an allergist pricked our upper arm, week after week, with what felt like a hundred syringes, hoping to discover which North American maple species was making us wheeze during soccer practice – well, we’ve just wanted to avoid needles if at all possible.

Which is why IV Drips is a mystery to us. But to each their own!

IV Drips is a mobile intravenous drip provider that tools around three New York boroughs – New Jersey, Long Island and Miami – offering IVs to customers in their homes. These are treatments meant to hydrate and add nutrients directly to the bloodstream. It’s hard for us to even say, but again, different strokes.

There are drips to cure hangovers, boost energy, help ease food poisoning symptoms and so on. You can even create your own custom drips.

Water Tort-ure?

This unique business got itself stuck with a National Advertising Division (NAD) inquiry related to an inescapable fact of life in 2020: COVID-19.

IV Drips allegedly posted tags with text such as “Protect Yourself & Your Loved Ones Boost Your Immune System,” “Trump Declares National Emergency Over COVID-19” and “Stay Healthy … strengthen your first line of defense with an immunity Drip” – all within the same Instagram post.

These, considered together, “reasonably convey the implied message that IV Hydration Therapy protects users against COVID-19,” maintains NAD.

The Takeaway

If we tried to link back to every article in which we warned about even flirting with COVID-related ad claims, we wouldn’t have room for the rest of the article.

So, we’ll repeat it again. Or – to mix it up a little – we’ll quote NAD: “The U.S. Centers for Disease Control and Prevention (CDC) and the FDA have both stated that there are no approved vaccines, drugs, or investigational products currently available to treat or prevent COVID-19.”

In the case of IV Drips, you’ll note no direct claims were made about the efficacy of the treatments in treating COVID; all it took was the positioning of a statement about the virus near the other claims to set NAD off.

Stay safe, everybody.

NAD referred the case to the FTC and the FDA when IV Drips failed to respond to its initial inquiry, but later relented when the company reached out to the watchdog group and agreed to take down the offending post (and several new ones with related claims).

The Pose Is Prologue

Supermodel asserts Instagram post transformed paparazzo’s shot into personal statement

And Now for Something Completely Different …

The coronavirus, rightly, has consumed all our excess time, and then some. But we don’t want to miss out on the relative pleasures offered by some of our pre-pandemic preoccupations when they crop up here and there.

Take, for instance, the paparazzi lawsuit. Yes, it seemed like a scourge in 2019, but then 2020 came along, put down its beer and gave us a shot of the real thing.

Nonetheless, developments in paparazzi legal battles have continued, and we have some interesting news regarding supermodel Emily Ratajkowski’s dustup with photographer Robert O’Neill.

If you don’t know Ratajkowski, she’s one of the three … shall we say scantily clad women in Robin Thicke’s “Blurred Lines” video, a production that, in the age of woke awareness, stirred up a backlash and has not matured well (go find the video on your own time). Like many celebs who launch their fame through controversial means, Ratajkowski has come to regret her debut; nonetheless, she used her notoriety and talent well and became quite famous. That, of course, has earned her predictable attention from the usual suspects.

A Confederacy of Models

In October 2019, the model was named in a complaint in New York’s Southern District by O’Neill, who accused her of copyright violations when she allegedly posted one of his photos of her to her Instagram account. He had licensed the photo to the Daily Mail but claimed that Ratajkowski had not licensed it from him.

The case chugged along until September 2020, when Ratajkowski filed for summary judgment. O’Neill replied with his own motion for summary judgment a month later, and there have been dueling memoranda in support from both parties since.

While there has been no response from the court to this preliminary sparring, Ratajkowski’s arguments are interesting and echo those from an earlier case we covered featuring supermodel Gigi Hadid. In that suit, Hadid claimed fair use of the photo, arguing that she had done nothing more than repost the image and that reposting “reflected a personal purpose different than the photographer’s purpose in taking the photograph, which was to commercially exploit Ms. Hadid’s popularity.”

The Takeaway

The case against Hadid ended without the argument ever having been addressed – the photographer failed to demonstrate that he held copyright, and the court tossed the suit. But Ratajkowski seems to have been inspired by her predecessor, perhaps having the defense in mind before O’Neill ever snapped the offending picture.

The photo Ratajkowski reposted depicted her walking down the street holding bouquets of flowers that obscured her face; she added the caption “mood forever” to the bottom of the snap. According to her most recent filing, the pose itself, as well as the caption, transformed the purpose of the photograph sufficiently to trigger a fair use defense. “Rather than merely documenting her location or her clothing,” her reply states, “the [post’s] purpose was to comment on the way Ms. Ratajkowski is constantly hounded by paparazzi like Plaintiff, and how not even shielding her face will stop them from trying to exploit her image.”

Hey – everyone wants creative control. Ratajkowski’s argument places the posture she assumed when she knew the picture was being taken at the center of the legal argument (her caption serves a similar purpose in her account). It’s a bold assertion of power and ownership over her own image.

We’ll let you know if her gambit gets any further than Hadid’s.

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