K&L Gates’ Advertising and Marketing Law group focuses on helping clients accomplish their goals and solve problems they encounter in connection with a broad range of advertising, promotion, and marketing activities, including data usage and privacy issues arising in connection with online and mobile advertising platforms.
We provide comprehensive legal services to our clients engaged in advertising and marketing activities, including advice on brand creation and protection, advertising regulations, comparative advertising, art and copy clearance, regulatory compliance, agency contracts, talent and production contracts, direct marketing, consumer promotions and competitions, data and privacy issues, and gambling regulations and cookie compliance for web tracking and behavioral advertising online.
We also help our clients conduct local and global marketing and advertising campaigns and operate their businesses in a highly competitive environment. We assist by navigating our clients through regulatory processes in getting their products to market, including planning and development, approval and marketing, and compliance and enforcement.
Our knowledge of the law, combined with our broad range of subject-matter experience, enables us to provide practical legal advice in the many legal disciplines that are critical in this sector and in the many business activities essential to our clients, such as sophisticated counseling, mergers and acquisitions, regulatory compliance, and litigation and alternative dispute resolution.
Our lawyers pride themselves in working closely with in-house marketing teams to manage the day-to-day demands and avoiding potential legal pitfalls prevalent in the industry. Our clients include marketing and advertising agencies, brand owners, production companies, industry associations, and media owners.
Specific industry experience includes:
When a client’s competitor makes false, misleading, or deceptive statements or representations in its advertising and marketing communications that are likely to harm the client’s business, there are a variety of laws which we can employ to obtain appropriate relief for our client. These include the portions of the Lanham Act covering false, misleading, and deceptive advertising; state unfair competition and deceptive trade practice laws, both common law and statutory; and entities including the Advertising Self Regulatory Council’s (ASRC) and the National Advertising Division (NAD).
K&L Gates has extensive experience with false and deceptive advertising disputes and advising clients of their rights under these laws. This includes significant experience in the following: Lanham Act Cases Our lawyers have extensive experience in asserting Lanham Act false advertising and unfair competition claims, as well as in representing clients in defending against such claims and, preferably, avoid them. These lawyers have represented clients in a wide range of industries in courts throughout the United States. National Advertising Division (NAD) Proceedings K&L Gates lawyers have significant experience with the ASRC’s NAD, and have an exceptional understanding of the NAD decisional process. Careful tracking of NAD decisions has allowed the firm to quickly and aggressively advocate our clients’ interests in this forum. In addition, our lawyers have assisted clients in resolving such disputes through a variety of alternative dispute resolution options, both with and without court or agency regulatory involvement. State Unfair Competition and Deceptive Trade Practice Cases We regularly represent companies in competitor cases involving claims of false advertising, deceptive trade practices, and unfair competition under the laws of various states.
K&L Gates’ Consumer Litigation practice has more than 40 lawyers throughout our U.S. offices who defend clients against claims for economic injuries arising from allegedly false, misleading, or deceptive advertising; failure to disclose; misrepresentations of purpose or use; inadequate service or support; breach of warranty; and other consumer fraud-based theories brought under state unfair competition and unfair trade practice laws, and laws providing similar protections to consumers in particular industries. These lawyers also are experienced in advising and guiding clients in response to product-related regulatory investigations and proceedings brought by the Federal Trade Commission (FTC), as well as by state attorneys general or state consumer protection bureaus.
K&L Gates has successfully defended clients of the firm against enterprise-threatening class actions brought under a broad range of legal theories and substantive areas of the law, including those based on false and deceptive advertising. We’ve defended major class actions brought in state and federal courts in nearly all of the United States as well as several foreign jurisdictions. We are uniquely positioned to defend local, national, and global companies in class actions wherever they may arise, and to manage the complexities posed by simultaneous litigations in multiple venues, including concurrent regulatory and civil proceedings.
Our team authored the “State Class Actions Treatise” (Aspen Publishing) in 2009 and has written annual supplements in each subsequent year. We were ranked among top law firms as a "Powerhouse" in Class Action and Torts in the BTI Consulting Group's (2014 Litigation Outlook Survey).
K&L Gates' Food and Drug Administration (FDA) practice, focusing on food, drug, device, and cosmetic regulatory and compliance matters, is an experienced and integrated team in all areas the FDA regulates. We help clients navigate the regulatory process throughout the life cycle of their products—from planning and development, and approval and marketing, to enforcement and ongoing compliance.
In addition to addressing regulatory issues after companies have funding and patents in hand, we assist with regulatory due diligence and other transactional needs. Our clients include domestic and international manufacturers and distributors of food, dietary supplement, pharmaceutical, biological, medical device, tobacco, personal care, and cosmetic products, as well as trade associations, individuals, and institutions involved in preclinical and clinical research of FDA- and U.S. Department of Agriculture (USDA) regulated products.
We offer clients multidisciplinary, global regulatory and transactional advice to help address FDA, USDA, Federal Trade Commission (FTC), Environmental Protection Agency (EPA), Consumer Product Safety Commission (CPSC), and other agency hurdles. We have excellent working relationships with the government agencies that regulate life science companies.
Industry has become increasingly creative and competitive in its labeling, advertising, and promotional activities related to FDA-regulated products, which has resulted in intensified FDA and FTC scrutiny. To assist clients in navigating this often confusing and treacherous area, we advise on acceptable promotional claims and claim substantiation for all product types in all promotional venues, from traditional print ads to new social media spaces. Our FDA team has extensive, successful experience representing product manufacturers, distributors, and marketers in matters ranging from informal compliance issues and negotiations with agency staff to investigations, formal administrative proceedings, and litigation in state and federal courts. More importantly, our ongoing counseling activities are geared toward the identification and mitigation of potential enforcement issues before they occur.
Businesses use prize promotions, sweepstakes, contests, and giveaways to promote brand awareness, build marketing databases and goodwill, and increase sales and profitability. With the advent of the Internet, the number and potential of such promotions has grown exponentially. Promotional contests and sweepstakes are effective because they play to the universal human desire to win something for little or nothing.
Before taking advantage of the public’s appetite for “free prizes,” however, businesses must consider the inherent legal risks. A variety of national, federal, and state laws and regulations, which differ from country to country and from state to state, apply to or may be implicated by prize promotions, sweepstakes, and contests. These can include criminal anti-gambling statutes, consumer protection regulations, telemarketing, distance selling and deceptive advertising statutes, and laws and regulations designed to protect children. Which of these laws will come into play depends upon the nature and type of promotion to be offered, and the laws of each jurisdiction in which a promotion will be available must be considered.
K&L Gates lawyers regularly counsel clients regarding prize promotions, sweepstakes, contests, and giveaways, whether conducted online or using more traditional methods. Such promotions require careful planning to maximize consumer excitement while, at the same time, satisfying the complex legal framework that governs them. As a starting point, our lawyers have the experience needed to correctly categorize the type of promotion and, then, to structure the promotion so that it complies with applicable legal requirements. Our lawyers will:
K&L Gates has represented clients in a variety of industries in connection with supervisory matters, investigations, and enforcement actions by the Consumer Financial Protection Bureau (CFPB). Representative engagements involving advertising and marketing conduct include participants in the consumer lending, mortgage lending, mortgage servicing, student lending, small-dollar lending, and credit reporting industries. Our lawyers also regularly assist clients in meeting compliance obligations with respect to marketing consumer financial products and services by, among other things:
Our knowledge and skills in consumer financial issues ideally situates us to help financial industry clients structure all aspects of advertising and marketing.
Privacy and data protection are among the most complex, dynamic, and rapidly changing areas of law in and outside of the advertising arena. The arena is currently attracting robust regulatory attention concerning advertising such as behavioral advertising or the like, whether it be on websites, in apps, or elsewhere (e.g., in a “thing” connected to the “Internet of Things”), and whether it be directed to adults or minors. Minors are attracting federal scrutiny (such as under the revised Children’s Online Privacy Protection Act (COPPA) regulation for children under 13), but states are also beginning to pass legislation covering a broader range of minors. The data collected for advertising is also a part of another area of increasing regulatory focus and debate, “Big Data.”
K&L Gates’ privacy, data protection, and information management lawyers help companies anticipate, shape, and adjust to these complex and sometimes contradictory and ever-changing requirements and developments.
The data and privacy team includes lawyers who are in, or work with, lawyers from our Intellectual Property, Technology Transactions, and Financial Regulatory groups, since many marketing campaigns create issues under those and additional legal regimes. K&L Gates’ presence in the important centers of the United States, Europe, Asia, Australia, the Middle East, and South America also provides clients with the benefit of our experience with cross-jurisdictional aspects of privacy and data protection.
K&L Gates has extensive experience representing advertising agencies, and our work runs the gamut from agency and media agreements, to clearance work, mergers and acquisitions, and litigation, including copyright, patent, trademark, and employment cases.
We are able to provide sophisticated and cost-effective counsel to agencies, because we understand their business needs and the competitive environment in which they operate. Our lawyers do not need to reinvent the wheel on the projects we handle.
We also understand the challenges that agencies face in their relationships with their own marketer clients. We are experienced in negotiating indemnity provisions, and we understand the difficult issues presented by digital work product, like patent infringement risks. We are able to bring to bear the wide breadth of practice groups that exist across the firm’s global platform in order to deliver highly focused advice and recommendations.
K&L Gates has a broad range of experience involving the Telephone Consumer Protection Act (TCPA), from advising and counseling clients on TCPA compliance and strategy to defending individual and class action litigation involving the sending of text messages, phone calls, and facsimiles allegedly in violation of TCPA requirements. Even companies with robust compliance standards may find themselves facing claims that their text, call, or fax activity violates the TCPA. Potential statutory penalties under that statute can be significant.
In terms of compliance-related matters, we have significant experience representing clients across a broad range of industries on their text messaging and calling practices, including in connection with autodialed messages to cell phones, the Federal Communications Commission’s recent rules on telemarketing robocalling, the treatment of informational calls and calls by non-commercial entities, limitations on fax solicitations, and myriad other issues under the TCPA.
On the litigation front, we regularly defend clients in TCPA lawsuits filed in federal and state courts throughout the United States and are familiar with the complexities of the defenses available under the statute and its regulations, as well as the bases on which class certification can be defeated. We also have assisted clients in obtaining contribution or indemnity from third parties, and in seeking and obtaining insurance coverage both for costs of defense and for any underlying liability.
We have extensive experience in advising on major sports and event sponsorship and endorsement deals, and a deep understanding of the area. We have advised some of the world’s biggest sponsors and rights holders at every stage of the process, from the initial tender through to the drafting and negotiation of the contract, the activation of the sponsorship, and in dealing with ambush marketing issues.
Our rights holder clients have included major event organizers, teams, leagues, franchises, and players, and we have acted for sponsors and brands in a very broad range of sectors. The events in relation to which we have advised include the Olympics, FIFA World Cup, Formula 1, ICC Cricket World Cup, IRB Rugby World Cup, UEFA European Championships, PGA European Tour golf events, the AFL Grand Final in Australia, the Australian Open, the A League, Six Nations Rugby, NASCAR, IndyCar, Grand Am Racing, World Wrestling Entertainment, (WWE), Major League Lacrosse, Major League Soccer, Ultimate Fighting Championship, NBA, NFL, NHL, MLB, XFL, PGA, and USGA. Recently, we advised on what was reported to be the biggest commercial deal in European football history at the time.
Our team is at the forefront of industry developments, including representing the European Sponsorship Association, the voice of the sponsorship industry in Europe, in relation to UK and EU developments in the regulation of sponsorship by gambling operators, and NASCAR in the formation of NASCAR Team Properties, a league-wide licensing and sponsorship trust combining the rights of all teams, drivers, and sponsors.
Areas of experience include: