Marketers Win Decisive Legal Victory (Advertising Law News And Analysis - July 12, 2012)

Edited by Jeffrey D. Knowles and Gary D. Hailey

Email Marketers Win Decisive Legal Victory

Recently, a jury considering Beyond Systems v. Kraft Foods unanimously found that anti-spam plaintiff Beyond Systems, Inc., an alleged Internet service provider, is "primarily or substantially" engaged in filing anti-spam lawsuits. Therefore, Beyond Systems is not a bona fide "Electronic Mail Service Provider" under California's anti-spam statute, or a bona fide "Interactive Computer Service Provider" under Maryland's anti-spam statute. This jury finding is important because it paves the way for the trial judge to rule as a matter of law that service providers that are "primarily or substantially" engaged in filing anti-spam litigation cannot sue under these state statutes. Such a ruling would, in effect, require plaintiffs to be bona fide to maintain state law causes of action in addition to federal CAN-SPAM lawsuits, and thereby provide a complete defense to email marketers sued for violations of state anti-spam laws.

Click here to read a detailed account of the case.

Analysis

Why Care About Counterfeiting?

If you are selling a successful product via direct response, write Venable attorneys Gregory J. Sater and Christopher S. Crook in the July 2012 edition of Electronic Retailer magazine, it is being counterfeited somewhere. The pair write that marketers have transitioned from an "If I get counterfeited" world to a "When I get counterfeited" world. The article points out that "every company must decide for itself whether and to what extent to register its trademarks, copyrights and patents and to fight the counterfeiters" based on those intellectual property rights. It also shares insights from a number of leading direct marketing executives who discuss how their companies have combatted counterfeiting.

Click here to read the article, which begins on page 26.

Some Changes to New Jersey's Gift Card Law Take Effect September 1

New Jersey's unclaimed property law was amended on June 29 when Senate Bill 1928 (SB1928) was signed into law. In a recent client alert, Venable attorneys Melissa Landau Steinman and Erin E. Seder write that although the new law was intended to fix some of the infirmities of the old unclaimed property law, the new law's data collection provision has the gift card community gearing up for a legal challenge. The new law, which was closely watched by issuers of gift cards, provides a five-year abandonment period, a new "cash-back"...