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ACI : 2012 : Advertising Law : Agenda

American Conference Institute’s 25th National Advanced Forum on

Advertising Law

Practical strategies to enhance your company’s advertising practices while overcoming new regulatory challenges

Monday, January 23 to Tuesday, January 24, 2012
The Millennium UN Plaza, New York, NY

Day 1: Monday, Jan 23, 2012

7:30
Registration and Continental Breakfast
8:30
Co-Chairs' Opening Remarks
  • Jonathan Avila
    VP - Counsel‚ Chief Privacy Officer
    The Walt Disney Company (Burbank‚ CA)
  • Aparna Dave
    Senior Counsel‚ Intellectual Property Section
    Wells Fargo (Houston‚ TX)
8:45
Spotlight on Advertising Privacy
  • Darren Lubetzky
    Attorney
    Federal Trade Commission
  • Ms. Joanne McNabb
    Chief
    California Office of Privacy Protection
  • Analyzing proposed federal legislation and the FTC's anticipated guidelines
    • creating a comprehensive opt-out system
    • simplifying privacy controls for consumers
  • Learning from states that have been actively involved in consumer privacy protection
    • Massachusetts
    • California
Minimizing the “Creep Factor:” Balancing Consumer Privacy Concerns With a Company’s Desire to Collect and Use Data
  • Jonathan Avila
    VP - Counsel‚ Chief Privacy Officer
    The Walt Disney Company (Burbank‚ CA)
  • Britton Murray
    Senior Counsel - Privacy
    Hilton Worldwide
  • - Ronald R. Urbach
    Chairman and Co-Chair Advertising, Marketing & Promotions Practice Group
    Davis & Gilbert LLP
  • Managing privacy compliance related issues when your organization is becoming more engaged in social media
  • Articulating clearly to consumers what data will be used, what it will be used for, and who it may be shared with
  • Comprehending the added danger of using Super Cookies when collecting consumer data
  • Contracting with third-party service providers who will collect data
    • negotiating contract provisions that reflect industry standards
    • drafting warranties to ensure that customer information is protected
  • Ensuring that website disclosures are up to date
  • Adhering to the 7 self-regulatory principles for online behavioral advertising
    • committing to providing an opt out to the use of online data
  • Understanding how to merge data collected off line with data collected online
  • Diminishing internet abuse through the use of e-mail, pop-ups, spam, spyware, and tracking cookies
  • Regulating online profiling and targeting capabilities
  • Providing consumers with adequate notice and information in the event of a data breach
  • Destroying personally identifiable information as soon as practicable
10:30
Morning Coffee Break
10:40
Getting to the Next Level: Using Video and Online Games to Deliver Your Message in Absence of Clear Guidelines
  • Seth Krauss
    Executive Vice President, General Counsel
    Take 2 Games (New York, NY)
  • Justin Townsend
    Chief Executive Officer and Co-Founder
    IGA Worldwide (New York‚ NY)
  • Brian Heidelberger
    Partner and Chair, Advertising, Marketing, and Entertainment Law Group
    Winston & Strawn LLP (Chicago, IL)
  • Delivering subliminal and subconscious messages to game players
  • What are the implications of using a video game as your advertising platform?
  • Connecting with consumers by enabling them to physically explore and engage with a brand through voice and gesture
  • Applying traditional advertising rules to the gaming world
  • Differentiating between two kinds of advertising within
    • a game
    • in-game advertising
    • advergaming
  • Creating a lasting impression through constant and repeated exposure to a brand or product
  • Capitalizing on consumer use of video games as a social experience
11:40
Capitalizing on the Mobile Marketing Message While Reducing Exposure to New and Unpredictable Liabilities
  • Ted Lazarus
    Senior Counsel
    Google Inc. (New York, NY)
  • Paul Weisbecker
    General Attorney
    AT&T Mobility and Consumer Markets (Atlanta‚ GA)
  • - Linda Goldstein
    Partner and Chair, Advertising, Marketing & Media Division
    Manatt, Phelps & Phillips, LLP (New York, NY)
  • Utilizing mobile marketing to increase consumer engagement and brand awareness
  • Leveraging bar code scanning technology as a new and innovative way of reaching consumers
  • Changing your mobile marketing practices based on the uptick in class action lawsuits for consumers who have not consented to receiving text messages
    • Lusskin v. Google, Inc. et al
  • Tying mobile messaging into a new product’s advertising campaign
    • offering coupons/discounts for consumers who opt-in to the texts
  • Ensuring mobile content is easy to access
  • Offering enough content to encourage consumers to connect with a brand in a more substantial way
  • Developing apps that continuously engage consumers
  • Creating a regulatory schematic that does not stymie the ability to market to consumers through SMS
12:45
Networking Luncheon
2:00
The Rules of the Playground: Staying in Line with Industry Standards and Guidelines When Advertising to Children
  • Rebecca Newton
    Chief Community & Safety Officer
    Mind Candy Ltd.
  • Denise Tayloe
    Founder‚ President and Chief Executive Officer
    Privo (Vienna‚ VA)
  • Angela Tiffin
    Senior Staff Attorney
    Children’s Advertising Review Unit (New York, NY)
  • Educating your marketing department about the do's and don'ts of advertising to children
  • Understanding CARU's routine monitoring practices
  • Crafting a safe social space for children to satisfy the government's desire for greater clarity and disclosure
  • Creating advertisements in coordination with games, contests and events
  • Exploring the potential for product placement within children's video games
  • Developing clear parental approval systems and the implementation of effective monitoring processes
  • Looking at the increasing scrutiny of advertising in the food industry and how you can respond
    • limiting exposure to advertising for non-nutritious items
  • Determining whether a child who “likes” your Facebook page constitutes marketing to minors
3:00
Afternoon Refreshment Break
3:15
The Convergence of Content, Community & Commerce: Reconciling the Tensions Between Advertisers and Publishers
  • Edward Klaris
    Vice President‚ Editorial Assets & Rights
    Condé Nast Publications (New York‚ NY)
  • Richard Kurnit
    Partner
    Frankfurt Kurnit Klein & Selz PC (New York‚ NY)
  • Developing a siloed online strategy for managing content, social communities and ecommerce
  • Turning conversations into conversion
  • Delineating between content that is advertising versus editorial
  • Minimizing the legal pitfalls associated with editorials and advertorials
  • Balancing freedom of speech with privacy rights
    • commercial vs. protected
  • Using analytics tools to measure traffic and to correlate social media campaigns to that traffic
  • Securing digital rights for website content
4:15
Maximizing the Value of the Brand/Agency Relationship Through Effective Negotiationof Contract Terms
  • Lisa Horwitz
    Vice President‚ Associate General Counsel
    RE:SOURCES USA‚ a member of the Publicis Group (New York‚ NY)
  • D. John Hendrickson
    Principal
    Manhattan Advertising & Media Law‚ Inc.(El Segundo‚ CA)
  • James W. Mathis
    Partner
    Husch Blackwell LLP (St. Louis‚ MO)(former Associate General Counsel‚ Anheuser-Busch Companies‚ Inc.)
  • Identifying the details to be covered as part of the agreement: the initial negotiation of terms, drafting an Interim Letter of Understanding, and the final contract refinement
  • Creating a compensation model that is easy to understand and administer
    • defining commission structure
    • incentive-based pay
    • set fees
  • Analyzing industry trends in billing and paying arrangements for production, media and agency fees
  • Negotiating the term: the agency’s desire for commitment vs. the advertiser’s desire for flexibility
  • Transforming the agency compensation methodology from a price-based to value-based approach based
  • Outlining a detailed scope of services
  • Protecting your interests in the interim period before an agreement is finalized
  • Determining ownership of materials
    • who will derive revenue?
    • treatment of accepted vs. rejected materials
  • Drafting warranties and indemnifications
  • Allocating risk when one side wants to move forward with an idea that the other side deems to be too risky
  • Defining the responsibility of agency counsel
  • Quantifying the value of marketing and advertising services to the client
  • Exploring when privilege exists in the context of agency communications
  • Protecting the company brand when the agency is a small start-up
  • Working through the global legal review process
5:15
Conference Adjourns to Day 2

Day 2: Tuesday, Jan 24, 2012

7:45
Registration and Continental Breakfast
8:45
Co-Chairs’ Opening Remarks
9:00
Battle of the Brands: Resolving Disputes Involving Competitors’ Comparative Claims
  • Jennifer E. Fried
    Senior Staff Attorney
    National Advertising Division (New York‚ NY)
  • -W. David Hubbard
    Vice President & Deputy General Counsel - Advertising
    Verizon Communications (Arlington‚ VA)
  • Roger A. Colaizzi
    Partner and Chair, IP Litigation Group
    Venable LLP
  • Ross M. Weisman
    Partner and Chair, Advertising, Marketing and Promotions Group
    Kirkland & Ellis LLP

Moderator
  • -Mr. Christopher A. Cole
    Partner
    Manatt‚ Phelps & Phillips‚ LLP
  • Analyzing the tactics companies have use to confront competitor claims that are potentially false or misleading
  • Preparing for the FTC’s increasing focus on burden of proof
    • who needs to establish causation?
  • Analyzing the rise in aggressive campaigns and comparative claims
  • How far can comparative ads go in tightly regulated industries?
    • dietary supplements
    • feminine hygiene products
  • Deciding your course of action when you believe a competitor’s claim cannot be substantiated
    • NAD proceedings
    • litigation under the Lanham Act
  • Working with the networks to remove false or misleading television campaigns
  • Determining when a referral to federal or state regulators will give you a desired outcome
  • Developing internal substantiation standards for often-scrutinized advertising techniques
10:30
Morning Coffee Break
10:45
Go for the Gold: A Case Study on Best Advertising Practices for the 2012 London Olympics
 
  • Bernadette Drankoski
    Marketing Counsel
    The Coca-Cola Company (Atlanta‚ GA)
  • Jonathan Mildenhall
    VP‚ Global Advertising Strategy and Content Excellence
    The Coca-Cola Company (Atlanta‚ GA)
  • Mr. Nick Johnson
    Partner
    Osborne Clarke
 
12:15
Networking Luncheon
1:30
Advertising in the Cloud: Exploring the Legal Concerns of Cutting Edge Technologies
  • Kristin McQueen
    SVP, Worldwide Business and Legal Affairs
    Walt Disney Studios Home Entertainment (Burbank, CA)
  • Kenneth A. Adler
    Partner and Chair‚ Technology and Outsourcing Practice Group
    Loeb & Loeb LLP (New York‚ NY)
  • Looking at new ways of distributing content to your consumers
  • Explaining clearly to consumers how the cloud content works and how they can benefit from this new medium
  • Avoiding overstating the functionalities of cloud content
    • o technological limitations
    • o geographical limitations
    • o how do you disclaim?
  • Understanding the global rights to film and other content
  • Collaborating with distribution channels to ensure your content is widely available
  • Minimizing the risks when advertising cloud content to children
  • Utilizing traditional advertising formats to launch new formats
2:30
Do Good While Doing Well: Ensuring You Compliantly Integrate Cause Marketing Into Your Campaign
  • L. Lynnette Fuller-Andrews
    Associate General Counsel
    Hanesbrands Inc. (Winston-Salem‚ NC)
  • Jensen M. Melton
    Associate Counsel
    U.S. Legal Affairs Aflac Worldwide (Columbus‚ GA)
  • Edward B. Chansky
    Shareholder
    Greenberg Traurig LLP (Las Vegas, NV)
  • Associating your brand with a charitable cause
  • Identifying regulatory requirements for cause marketing
    • different state regulations
    • determining what should and should not be part of the contract
    • differentiating between a sweepstakes, promotion and co-venture
    • disclosure requirements
    • tax implications
  • What are the new and emerging forms of cause marketing and how are these regulated?
    • donation of reward points
    • public voting on where donation is made
    • prize for biggest fundraiser
  • Maximizing the charity’s ability to increase donations, volunteers, and supporters while the business capitalizes on new, emotionally connected customers with greater community visibility
  • Seeking vetted, credible partners that align with the brand or company on a relevant and authentic social issue
    • minimizing the risk of “shady” dealings and partnerships
3:45
Afternoon Refreshment Break
4:00
Making Your Mark: Responding to Unauthorized Use of Your Brand’s Intellectual Property
  • Aparna Dave
    Senior Counsel‚ Intellectual Property Section
    Wells Fargo (Houston‚ TX)
  • Rebecca Sanhueza
    Deputy General Counsel
    Time Inc. (New York‚ NY)
  • Kelli L. Sager
    Partner
    Davis Wright Tremaine LLP (Los Angeles‚ CA)
  • Establishing an online monitoring process to mitigate trademark abuse on the Internet
  • Ensuring that marketing tactics do not violate the publicity rights of celebrities and other individuals
    • knowing what constitutes protected expression
    • person’s name or likeness, look-alikes, nicknames associated with a celebrity
    • examining recent cases
  • Complying with requirements under the Digital Millennium Copyright Act when engaging in emergent advertising practices
  • Negotiating appropriate licenses when content will be leveraged for use in different media and campaigns
  • Responding to unauthorized use of your brand’s protected intellectual property
  • Evaluating other areas of potential trademark abuse on the Internet
    • keyword advertising practices
    • use of competitors’ trademarks
    • risks relating to linking to and from other sites
  • Knowing what constitutes protected expression when athletes, celebrities and other individuals are discussed or represented on your sites
  • Implementing an effective take-down notification policy where posted content may be infringing
  • Ensuring that you do not cede too much control over your IP assets when working with networking sites
  • What is a company’s obligation to search for potential
5:15
Conference Concludes