Fernanda Magalhães’ Post

Amid the aftermath of the severe Yagi typhoon, the Committee on Culture and Education under the National Assembly (NA) hosted a consultative roundtable to gather opinions from experts and businesses on the draft Advertising Law. The event also featured the law drafting team and representatives from other relevant State agencies. I had the pleasure of participating in this roundtable to share my comments on the important draft Advertising Law. Online and cross-border advertising were among the most frequently raised issues by industry stakeholders. Concerns were voiced regarding the practical challenges of complying with requirements such as content takedown within 24 hours, avoiding the placement of advertisements within or adjacent to infringing content, and ensuring the direct use of the advertised product by advertising conveyors. Liability exemption was also endorsed in situations where advertising service providers or publishers are unable to effectively control the content displayed for advertisement. Conference attendees emphasized the need for clearly defined roles for different authorities (MOCST, MIC, MIT) to avoid any regulatory overlaps. It is an interesting time for me and our teams to advocate for this important law. Some of the comments we submitted in May this year have already led to the removal or modification of certain provisions in the latest draft of the Advertising Law. According to the legislative agenda, the draft law will be submitted to the NA plenary meeting for the first reading in October this year and for final approval in June 2025. https://lnkd.in/gqzZE5kn

During my time in advertising, I often thought about how contract law could better reflect the unique needs of the industry. I was particularly focused on how contracts could be more representative and tailored to the nuances of advertising and creative work. Now, I'd like to share some of the clauses I would include in contracts specific to this industry. A tweet I came across recently re-emphasized the importance of ensuring contracts truly reflect the nature of creative work. 🖊 If you know me you know this one: Dispute Resolution Clause: Outline the process for resolving disputes, eg: mediation or arbitration. 🖊 Intellectual Property Rights Clause: Clearly define who owns the intellectual property rights to the work. Specify if the creator holds ownership or if the rights are being transferred to the client, and under what conditions. 🖊 Rights of Usage and Licensing Clause: Specify how, where, and for how long the client can use the work. Exclusive or non-exclusive. 🖊 Attribution Clause: Ensure that the creator's name is credited whenever the work is used or displayed. 🖊 Controversial: Moral Rights Clause: Protect the creator’s right to maintain the integrity of the work and prevent any modifications that could harm the creator's reputation. This can also cover the right to object to derogatory treatments of the work. 🖊 Approval and Revision Clause: Outline the process for reviewing and approving the work before it is finalised. 🖊 Indemnity and Liability Clause: Limit the creator's liability for any claims arising from the use of the work. 🖊 This one is very specific to the part of the advertising I was working in: A Non-Solicitation of Advertising Partners Clause to prevent one party from soliciting or engaging the advertising partners of another party.

The Lanham Act, the same federal law regulating trademarks, also provides a cause of action for false advertising. This legal claim allows a plaintiff to sue a defendant for making false or misleading statements about the defendant’s own goods or services, or the goods or services of another. To prevail on a false advertising claim under the Lanham Act, a plaintiff must prove the following elements: 1. The defendant made a false or misleading statement of fact about its own or another’s product in commercial advertising or promotion. The statement must misrepresent the nature, characteristics, qualities, or geographic origin of the product. 2. The false or misleading statement actually deceived or had the tendency to deceive a substantial portion of the intended audience. 3. The deception was material, meaning it was likely to influence purchasing decisions. 4. The defendant caused the false statement to enter interstate commerce. 5. The plaintiff has been or is likely to be injured as a result of the false statement, either by direct diversion of sales from itself to the defendant, or by a lessening of goodwill associated with the plaintiff's products. Notably, to have standing to bring a false advertising claim under the Lanham Act, the plaintiff must allege an injury to a commercial interest in reputation or sales. *Consumers* misled by false advertising *do not* have standing to sue under the Lanham Act, as the cause of action is designed to protect commercial competitors, not individual consumers. In terms of remedies, a plaintiff that proves false advertising under the Lanham Act may be entitled to an injunction ordering the defendant to stop the false advertising, as well as monetary relief in the form of the plaintiff’s actual damages, the defendant’s profits from the false advertising, and in some cases, enhanced damages and attorneys’ fees. Courts typically require a heightened showing of injury and causation to award monetary damages compared to an injunction. It’s important to note that not all false or misleading advertising violates the Lanham Act. The statute recognizes a safe harbor for puffery—exaggerated advertising claims or opinions not intended to be taken literally. An example would be a restaurant claiming they have the “World’s Best Coffee.” Such vague and subjective claims are considered puffery and are not actionable as false advertising.

Press Release Detail by #CCP CAT UPHOLDS CCP PENALTY ON M/S IRSHAD TRADING Islamabad, 23-05-2024 The Competition Appellate Tribunal (CAT) decided to uphold PKR 5 million penalty imposed by CCP on M/s Irshad Trading Corporation for deceptive marketing practices. The penalty was imposed by CCP on Irshad Trading for fraudulently using its competitor, Polycon Pakistan (Pvt.) Limited’s trademark, violating Section 10 of the Competition Act, 2010. Polycon lodged a formal complaint with the CCP, alleging that Irshad Trading Co. was unlawfully using its registered trademark and brand name to manufacture, market, and sell water storage tanks, and was also misrepresenting itself as a joint venture of Polycon. The CCP’s enquiry committee established the violation of Section 10 by Irshad Trading. During the proceedings, Polycon confirmed that Irshad Trading had been its authorized distributor until September 2018, after which the distribution agreement was terminated. Despite the agreement’s termination, Irshad Trading continued to manufacture, market, and sell products with Polycon's logo until February 2019. Irshad Trading stopped the practice after the CCP’s show cause notice, but the unauthorized use had already harmed Polycon’s business interests. Irshad Trading admitted to the violation, citing a lack of awareness of copyright laws and Section 10. They admitted having manufactured water tanks using Polycon’s trademark after the termination of the distribution agreement. Taking a lenient view in light of Irshad Trading's commitment to refrain from such deceptive marketing practices in the future, CCP imposed a penalty of PKR 5 million and directed the company to cease using Polycon’s trademark, trade name, and products. Although Irshad Trading challenged the CCP’s order in CAT, it failed to appear before the Tribunal on the scheduled hearing dates, leading to the dismissal of the appeal for non-prosecution.

I uncovered some sneaky terms brands often include in Creator Agreements 5 red-flags from today. Any and all/but not limited to: These terms are extremely broad and can result in the Creator being liable for a wide range of unforeseen legal obligations. In perpetuity: Limit licensing rights to a defined timeframe. Brands shouldn’t be allowed to utilize your content indefinitely without fair compensation. Termination by convenience: This clause allows Brands to terminate the Agreement at any time, for any reason, without cause. Morals clause: Ensure this clause is mutual. It allows Brands to terminate the Creator for "unacceptable" behavior. Creators should have the same right if the Company's actions are unfavorable. Exclusivity: Brands often include exclusivity restrictions that forbid working with other brands. Limit these to specific durations and competing brands. Hope that's helpful.

Press Release Detail by #CCP CAT UPHOLDS CCP PENALTY ON M/S IRSHAD TRADING Islamabad, 23-05-2024 The Competition Appellate Tribunal (CAT) decided to uphold PKR 5 million penalty imposed by CCP on M/s Irshad Trading Corporation for deceptive marketing practices. The penalty was imposed by CCP on Irshad Trading for fraudulently using its competitor, Polycon Pakistan (Pvt.) Limited’s trademark, violating Section 10 of the Competition Act, 2010. Polycon lodged a formal complaint with the CCP, alleging that Irshad Trading Co. was unlawfully using its registered trademark and brand name to manufacture, market, and sell water storage tanks, and was also misrepresenting itself as a joint venture of Polycon. The CCP’s enquiry committee established the violation of Section 10 by Irshad Trading. During the proceedings, Polycon confirmed that Irshad Trading had been its authorized distributor until September 2018, after which the distribution agreement was terminated. Despite the agreement’s termination, Irshad Trading continued to manufacture, market, and sell products with Polycon's logo until February 2019. Irshad Trading stopped the practice after the CCP’s show cause notice, but the unauthorized use had already harmed Polycon’s business interests. Irshad Trading admitted to the violation, citing a lack of awareness of copyright laws and Section 10. They admitted having manufactured water tanks using Polycon’s trademark after the termination of the distribution agreement. Taking a lenient view in light of Irshad Trading's commitment to refrain from such deceptive marketing practices in the future, CCP imposed a penalty of PKR 5 million and directed the company to cease using Polycon’s trademark, trade name, and products. Although Irshad Trading challenged the CCP’s order in CAT, it failed to appear before the Tribunal on the scheduled hearing dates, leading to the dismissal of the appeal for non-prosecution.

**BREAKING NEWS** Court of Appeal decision: In a busy few months for Arnold LJ (Iconix v Dream Pairs; M&S v Aldi), the Court of Appeal judgment is out today on Lidl v Tesco: 1. High Court upheld on trade mark infringement and passing off. Tesco infringe. 2. Good news for unfair advantage claims v lookalikes. See Arnold LJ at para 168: “It is difficult to see how use of a sign which takes unfair advantage of the reputation of a trade mark can be with due cause”. Hopefully Thatchers will be appealing the bizarre contrary finding by IPEC in Thatchers v Aldi. 3. My favourite paragraph (!!) is 118 where Arnold LJ seems to be interested in consumer behavioural science (the Courts do listen...): "When deciding issues such as likelihood of confusion, it can be of value for the court to receive evidence as to the shopping habits of consumers of the relevant goods or services: for example, as to whether they are in the habit of reading the label on an item before selecting it for purchase or whether they simply rely upon the appearance of the packaging. This is not in itself evidence of confusion, but it may be evidence of circumstances giving rise to a likelihood of confusion: see Lewison LJ in Interflora CA I at [103]-[106] and [137]. In some circumstances, evidence of this nature can properly be given by means of factual evidence from a witness with experience in the relevant trade: see Fenty v Arcadia Group Brands Ltd [2013] EWHC 1945 (Ch), [2013] FSR 37" 4. Bad faith finding upheld re evergreening “bad faith” trade mark application by Lidl. 5. Copyright appeal allowed - High Court overturned (unsurprisingly!) A good day for IP all round. In my view the unfair advantage judgment by High Court was correct but the copyright finding (that the below Clubcard logo infringed the below Lidl logo) was always going to problematic. Well done Court of Appeal, especially the comments on consumer behaviour towards packaging…!

Advertising industry adopts new self-declaration mandate with 5,800+ entries on day one. #SonyLIV and #Hyundai lead initial registrations. More here: https://lnkd.in/dR8vyc8Y #Advertising | #Marketing | #Campaign | #AdvertisingCompliance | #SelfDeclarationCertificate | #AdIndustryRegulations | #BrandCompliance #AdvertisingStandards | #DigitalAdvertising

Zepto Zepto Cares Zepto Advertising Solutions what is this one? you people are showing item total with increasing rs. 10/ from the original item total. why? now if you say that it's written that item total and GST then I will say why always GST will be rs. 10/? I also have another screen record with increasing the item total and the same issue again. how is it possible that the amount of GST remain same after increasing the value of item?

Businesses, regulators, academics, and advertising and legal professionals connected in New York City in September to discuss the “Global Future of Ad Law” at the National Advertising Division (NAD) Annual Conference. Elizabeth Bresnahan and I cover some of the key topics. Read more: