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ACC’s 2010 Annual Meeting Be the Solution. Tuesday, October 26 4:30pm-6:00pm 807 - You Said What?!? Recognizing When Your Marketing Has Crossed the Line Lesley Fair Senior Attorney Bureau of Consumer Protection, Federal Trade Commission Martin Hernandez Advertising & Marketing Legal Counsel Dell Inc. Julia Huston Partner Foley Hoag LLP Jennifer Millones Senior Attorney Diageo North America, Inc. Edward Shin Senior Corporate Counsel Welch Foods Inc. This material is protected by copyright. Copyright © 2010 various authors and the Association of Corporate Counsel (ACC). Materials may not be reproduced without the consent of ACC. Reprint permission requests should be directed to ACC’s Legal Resources Department at ACC: +1 202.293.4103, x338; [email protected] ACC's 2010 Annual Meeting Be the Solution. Session 807 Faculty Biographies Lesley Fair Lesley Fair is a senior attorney with the Federal Trade Commission's Bureau of Consumer Protection, where she has represented the commission in numerous investigations of false advertising. A recipient of the Paul Rand Dixon Award for Law Enforcement, the FTC's Award for Outstanding Scholarship, and the Janet D. Steiger Award, she now specializes in industry education and compliance with the FTC's Division of Consumer & Business Education. Ms. Fair is on the adjunct faculty of the Catholic University School of Law and holds the title of Distinguished Lecturer and has been named Outstanding Adjunct Professor. She recently joined the adjunct faculty of George Washington University Law School. Before coming to the FTC, she was law clerk to United States District Judge Fred Shannon of the Western District of Texas in San Antonio and served as staff counsel to the United States Court of Appeals for the Fifth Circuit in New Orleans. Ms. Fair is a vice-chair of the Consumer Protection Committee of the ABA's Section of Antitrust Law and co-editor of ABA Consumer Protection Update. In addition to writing a monthly column for Electronic Retailer magazine, Ms. Fair is the author of FTC Regulation of Advertising in FOOD AND DRUG LAW AND REGULATION (2009) and The FTC's Approach to Health Claims in Advertising in REGULATION OF FUNCTIONAL FOODS AND NUTRACEUTICALS (2005). Ms. Fair graduated from the University of Notre Dame and received a JD from the University of Texas School of Law. Martin Hernandez Martin Hernandez is associate general counsel at Dell Inc. In his role as advertising and marketing counsel, he advises clients on legal and business issues associated with general advertising as well as comparative advertising, disputes with competitors, sweepstakes and contests, rights of publicity, trademark, copyright, and privacy. Prior to joining Dell, Mr. Hernandez was an associate in the Austin office of Fulbright & Jaworski, LLP where his litigation practice focused on trademark and false advertising cases. Mr. Hernandez is on the board of directors of The Representation Alliance, an Austin- based, independent non-profit organization devoted to creating systemic change in healthcare and education laws and regulations that impact low-income families. Mr. Hernandez received his law degree from the University of Chicago and a BA from the University of Texas at El Paso. Copyright © 2010 Association of Corporate Counsel 2 of 197 ACC's 2010 Annual Meeting Be the Solution. Session 807 Julia Huston Julia Huston is a partner in Foley Hoag LLP's intellectual property department and chair of the firm's Trademark, Copyright and Unfair Competition practice group. She has had high-profile victories in cases involving trademarks, false advertising, copyrights, trade secrets, Internet commerce, domain name piracy, unfair competition, and patents. She has several multi-million dollar judgments and settlements to her credit, including a $20.7 million jury verdict in a false advertising and commercial disparagement case. In the context of corporate transactions, Ms. Huston has led due diligence teams that have investigated and evaluated intellectual property rights, and provided comprehensive advice concerning the protection of intellectual property in licensing and assignment transactions. Prior to joining Foley Hoag, Ms. Huston was chair of the trademark practice group at an intellectual property boutique in Boston. She has held leadership positions in several bar associations and professional organizations. She is currently vice-chair of the Trademark Law (U.S.) Committee of the Intellectual Property Owners Association, and is an active member of the International Trademark Association (INTA) Parallel Imports Committee. Working on behalf of INTA and the Boston Bar Association, she spearheaded the first overhaul of the Massachusetts trademark laws in over thirty years. She is currently president of Greater Boston Legal Services and a past-president of the Women's Bar Association of Massachusetts. Ms. Huston received BA and BS degrees from Boston University, an Ed.M. degree from Harvard University, and is a graduate of the Boston University School of Law. Jennifer Millones Jennifer J. Millones is founder of Blue Door LLC, an intellectual property consulting company, and also serves as special counsel, intellectual property, for Diageo North America, Inc., the North American subsidiary of the world's leading premium drinks business with beverage alcohol brands across spirit, wine and beer categories. Ms. Millones is based in Norwalk, Connecticut at the North American headquarters of Diageo. She handles global intellectual property issues relating to many of Diageo's brands. Prior to joining Diageo, Ms. Millones was with the firm of White & Case in its New York office, where her practice centered on intellectual property litigation in the sports arena, representing the National Football League and ESPN. Ms. Millones was a litigator with Latham & Watkins' New York office before joining White & Case. Ms. Millones is a member of the Online Reference Committee of the International Trademark Association and a member of the Intellectual Property Committee of ACC's Copyright © 2010 Association of Corporate Counsel 3 of 197 ACC's 2010 Annual Meeting Be the Solution. Session 807 WESFACCA. Ms. Millones is a frequent speaker on trademark, false advertising, copyright and right of publicity issues. Ms. Millones earned her JD, cum laude, from Boston College Law School, and her BS from Cornell University. Edward Shin Edward (Ted) Shin is senior corporate counsel to Welch's, a Massachusetts-based producer of grape juices, grape jelly, and other fruit-based products. In this role, Mr. Shin has responsibility for reviewing advertising, product labels, promotions, and other consumer messaging for compliance with FDA, FTC, and other laws; employment counseling; litigation management; trademark management; and contract review. Prior to joining Welch's, Mr. Shin was a staff lawyer at the New York City Law Department, defending the city against administrative and employment claims. Mr. Shin is a member of the Boston Bar Association and the Asian-American Lawyers' Association of Massachusetts. He received his BA from Macalester College in St. Paul, Minnesota, and his JD from New York Law School in New York City. Copyright © 2010 Association of Corporate Counsel 4 of 197 ACC's 2010 Annual Meeting Be the Solution. “You Said What?!? Recognizing When Your Marketing Has Crossed the Line” Association of Corporate Counsel Annual Meeting San Antonio, TX – October 26, 2010 Julia Huston, Esq. (Moderator) Partner, Foley Hoag LLP Lesley Fair, Esq. (Panelist) Senior Attorney, Bureau of Consumer Protection, Federal Trade Commission Martin G. Hernandez, Esq. (Panelist) Advertising & Marketing Legal Counsel, Dell Inc. Jennifer Millones, Esq. (Panelist) Senior Attorney, Diageo North America, Inc. Edward “Ted” Shin, Esq. (Panelist) Senior Corporate Counsel, Welch Foods Inc. List of Resources Statutes Lanham Act Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which . in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act. 15 U.S.C. § 1125(a)(1)(B) Federal Trade Commission Act Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful. 15 U.S.C. § 45(a)(1) *** It shall be unlawful for any person, partnership, or corporation to disseminate, or cause to be disseminated, any false advertisement— (1) By United States mails, or in or having an effect upon commerce, by any means, for the purpose of inducing, or which is likely to induce, directly or indirectly the purchase of foods, drugs, devices, services, or cosmetics; or Copyright © 2010 Association of Corporate Counsel 5 of 197 ACC's 2010 Annual Meeting Be the Solution. (2) By any means, for the purpose of inducing, or which is likely to induce, directly or indirectly, the purchase in or having an effect upon commerce of food, drugs, devices, services, or cosmetics. 15 U.S.C. § 52(a) Federal Food, Drug, and Cosmetic Act The following acts and the causing thereof are hereby prohibited: (a) The introduction or delivery for introduction into interstate commerce of any food, drug, device, or cosmetic that is adulterated or misbranded. 21 U.S.C. § 331 * * * A food shall be deemed to be misbranded— (a) False or misleading label. If (1) its labeling is false or misleading in any particular, or (2) in the case of a food to which section 411 applies, its advertising is false or misleading in a material respect or its labeling is in violation of section 411(b)(2). 21 U.S.C. § 343 Cases Apple Inc. (Apple Notebooks), NAD Report #5013, NAD/CARU Case Reports (June 2009) Black & Decker (U.S.) Inc., 113 F.T.C.