using selfies and other real time marketing tactics: what ......olympics on social media •includes...

Using Selfies and Other Real Time Marketing Tactics:

What Would You Approve?

Presented by:

Brian L. Heidelberger, Winston & Strawn

Romy Horn, 360i

Miri Miller, Dentsu Aegis

Joe Khanna, MasterCard

© 2015 Winston & Strawn LLP

Miri’s Dog

Before We Start …


• How Conservative are you (your company) with regard to IP

and Social Media:

• Conservative (won’t take risks)

• Middle of the Road (evaluate and take risks worth taking)

• Liberal (take a lot of risk)

Poll Question #1

3


• Has your company ever had a “significant” IP claim related

to your company’s use of social media?

• Yes

• No

NOTE: for purposes of this poll, “significant” means a lawsuit or a claim

that was settled in excess of $5,000-$10,000.

Poll Question #2?

4


• What do you consider the “biggest IP risk” in social media?

• False Advertising

• Copyright Infringement

• Trademark Infringement

• Right of Publicity

NOTE: for purposes of this poll, “biggest IP risk” means the issue you

are most conservative on.

Poll Question #3

5


Copyright


Would you approve?

7


Would you approve?

8

• Photo used without permission


Would you approve?

9

Looks Like “For Dummies”


Ad Only Similar in Idea

• Depictions substantially different

• Vehicles, settings, and animals

• Total concept and feel different

• Warmth, family and fun v. raw power, independence and escape

Original Advertisement Toyota Advertisement 10

• Factual Allegations:

• Beyoncé’s trailer and film for the

release of her album “lemonade”

infringes plaintiff’s copyright in

his short film

• Plaintiff produced 9 visual, audio

and “total concept and feel” alleged

similarities

• Holding:

• Alleged similarities consist almost

entirely of ideas not original to

plaintiff and of stock elements with

which a casual observer would be

familiar.

• Sharing the same narrative theme,

same aesthetic mood and pace are

unprotectable ideas

• Differences between each of the

Lemonade Video Didn’t Infringe Short

Film

Matthew Fulks v. Beyoncé Knowles-Carter

11

• Factual Allegation:

• Steak and Shake’s TV ad infringes

Culvers’

• “Expression, images, dialogue, and

sequencing of the two ads both “feature

a quintessential local butcher’s shop

with an older butcher displaying three

different cuts of ‘well-marbled’ beef that

‘come together’ as the camera pans to

the grill showing the patties being

seared to ‘seal’ in the flavor or juices.”

• Decision:

• The common elements identified by

Culver lack the necessary modicum of

creativity to give rise to copyright

protection and the commercials differ in

certain significant respects

Court Rejects Claim That Competitor’s Ad is a Copyright

Infringement

Culver Franchising v. Steak and Shake

12


Trademark/False Association


Would you approve?

14


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15


Would You approve?

16


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Would You Approve?

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Would you approve?

19


Lawsuit Over Depiction of Un-Named Product

• viral video didn’t name

plaintiff

• but featured its mattress

• mattress looked extremely

painful

• Decision: Plaintiff’s trade

dress was identifiable and

defendant enjoined based

on false advertising claims

20

Lawsuit Over Reference to Famous Movie Quote

21


• Kardashian’s granted Haven Beauty

the right to its trademarks for

cosmetics

• Kardashian’s terminated the

license for Haven Beauty’s

alleged breach

• Haven Beauty countered that it

wasn’t in breach and Kardashian’s

improperly terminated the license

• Haven Beauty continued to use

trademark and did not pay

royalties

• Holding:

• Even if Kardashian had no right

to terminate or Kardashian’s

breached first, Haven Beauty

cannot stop paying royalties and

continue to use a trademark

Kardashian Trademark Infringed By Licensee Even If Kardashian’s Breached License

2Die4Kourt, et al. v. Hillair Capital Management, LLC, et al.

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• Distinctive Assets promotes third-party

products through high-profile gift bags

given to celebrities who are nominated for

major awards.

• The gift bag at issue in the lawsuit

includes high-end items valued as high as

$200,000, which is being marketed as the

“Everyone Wins Nominee Gift Bags in

Honor of the Oscars®”.

• “#OscarGiftBag” to promote its gift bags

• Distinctive Assets’ marketing is conveying

that these gift bags are authorized by the

Academy, or otherwise associated with

the Oscars®, when in fact there is no

affiliation.

Lawsuit Over Gift Bags and Hashtag

Academy of Motion Picture Arts and Sciences v. Distinctive Assets

23


• Tyson launched “Park’s Finest” hot

dogs

• Parks LLC sells sausages and other meat

products

• Parks claims that Tyson infringed upon

its “Parks” trademark and engaged in

false advertising

• Holding:

• Court found no trademark infringement

or false advertising

• Wasn’t “false advertising” because

• calling Tyson’s product “Park’s

Finest”—does not relate to the

“nature, characteristics,

qualities, or geographic origin”

of the product; and

• Tyson’s use of “Parks” didn’t

function as a trademark

• Wasn’t trademark infringement because

• Consumers would understand that

the “Park’s” in “Park’s Finest”

Court Holds No Trademark Infringement and/or False

Advertising of “Parks” Trademark by use of “Park’s Finest”

Parks, LLC v. Tyson Foods, Inc.

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Right of Publicity


Would You Approve?

26


Would You Approve?

27


Would you approve?

28

Brand Post Links To

Would You Approve?

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Would you approve?

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Would you approve?

31


Lawsuit by Estate of Julia Child“Airbnb is giving away a free night at the former home of Julia Child in

Provence, France.”

32


• Lohan’s likeness used in two pieces of

still artwork and the game character in

the video game, “Grand Theft Auto V”

• Take-Two purposefully used Lohan’s

bikini, shoulder-length blonde hair,

jewelry, cell phone, and “signature

‘peace sign’ pose”

• Take-Two denied Lohan inspired or

resembled these characters other than

all being young, blond, and female

• Holding:

• Take-Two did not use Lohan’s name,

portrait, or picture, never referred to

Lohan by name and never used a

photograph of Lohan

• The game is protected as fiction or

satire

Court Rejects Lindsay Lohan’s Right of

Publicity Claim

Lindsay Lohan v. Take-Two Interactive

33


Reference to "World Record Holder" Generates Lawsuit

• World record holder for most

consecutive kicks of one hacky sack,

• sued over 5 Hour Energy commercial

• depicted a man who claimed to have

mastered origami “while beating the

record for Hacky Sack.”

• Court dismissed the lawsuit as the

commercial did not identify the world

record holder.

34

Olympics


Would you approve?


“No Social Media” for Non-Olympic Sponsor Policy

Challenged in Lawsuit

Zerorez v. U.S. Olympic Committee


• USOC claims that non-sponsor brands should not be posting about the Olympics on social media

• Includes prohibition on use of photos and use of hashtags such as #RIO2016or #TeamUSA

• Lawsuit Seeks:

• Court to declare that example posts don’t violate law and that it’s not illegal to reference the Olympics in social media, including use of hashtags

• Example Posts:

• Congrats to the 11 Minnesotans competing in 10 different sports at the Rio 2016 Olympics! #rioready

• Are any Minnesotans heading to #Rio to watch the #Olympics? #RoadToRio

• Let the rumble in Rio begin! From badminton to BMX, Minnesotan Olympians are at the #Rio2016 Olympics. Go #TeamUSA!


• Motion to dismissed filed by USOC

• MTD not responded to by Plaintiff

• USOC asked court to grant motion

“No Social Media” for Non-Olympic Sponsor Policy

Challenged in Lawsuit

Zerorez v. U.S. Olympic Committee

41

Thank You!

using selfies and other real time marketing tactics: what ......olympics on social media •includes...

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