Category Archives: Commercial Matter

The NCAA is Anti-Competitive: The Ruling Heard Round the College Sports World

By: Brian J. Meli

I’ve been following the O’Bannon v. NCAA trial with great interest since it began. Not just because of its growing status as a landmark antitrust case, its roots in intellectual property, or its potential to dramatically shift the balance of power in college sports; but also because it was Ed O’Bannon’s championship UCLA team in the mid-nineties (specifically his pint-sized point guard Tyus Edny’s last minute, coast-to-coast game winning buzzer beater) that cemented my passion for the spring sporting ritual that is March Madness. Back then, who could imagine Ed O’Bannon would wind up being the lead plaintiff in a case that could alter the landscape of collegiate sports forever. And yet, that’s exactly where we are.

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The Wisdom of Crowds: The Risks and Rewards of Crowdsourcing and the User-Generated Content Movement

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By: Brian J. Meli

Nowhere is the Internet’s ability to lay waste to established but out-moded industries on fuller display than in the realm of crowdsourcing. Everywhere you turn there’s a new crowdsourced-based start-up boldly proclaiming the dawn of a new era and the end of the way you’re currently (and have always been) doing something. Whether that something is locating sources for investment capital or booking a second honeymoon, there’s a host of new companies promising to do it more efficiently and less expensively than ever before by unleashing the power of the masses.

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The Supreme Court Has Decided The Fate of TV: The Aereo Ruling And Where We Go From Here

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By: Brian J. Meli

Not since Sony v. Universal City Studios has a copyright case captured the attention of the broadcast and entertainment industries, or the imagination of the public at large, quite like American Broadcasting Cos., Inc. v. Aereo. In case you missed last year’s lower court skirmishes in this fast-moving dispute, or the serious economic incentives driving them, you can find a summary of the lead up here.

If you’d rather skip to the end, read on.

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Did the USPTO Just Right a Social Wrong, Or Abridge Free Speech?

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By: Brian J. Meli

The Washington Redskins football team is back in the news, but not for their astute draft day maneuverings or the buzz surrounding the start of training camp. This particular story is not a new one either—not by a long shot. In fact, it’s been the source of public debate since well before the team’s current crop of rookies were even born.

Once again, it’s the team’s name that’s grabbing headlines: Redskins. Racial slur? Or proud nickname? By canceling six different federal REDSKINS trademark registrations on the grounds that they disparage Native Americans, the United States Patent and Trademark Office (USPTO) made it clear today where they stand. Whichever side you come down on, this debate is now squarely on the front page again. And this time around there’s every indication it’s going to be there for a while, with everyone from the President of the United States to Bob Costas weighing in.

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The POM Wonderful v. Coca-Cola Decision Is In, And The Supreme Court Unanimously Sides With Private Plaintiffs

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By: Brian J. Meli

Eleven amicus briefs were filed in support of POM Wonderful and Coca-Cola, but the real argument wasn’t between the captioned parties in the case. This was a clash of laws, pitting the Federal Food Drug and Cosmetic Act (FDCA) and Nutrition Labeling and Education Act (NLEA) against Section 43 of the Lanham Act for consumer protection supremacy. This was a dispute about the authority of administrative rules to usurp the rights of private claimants seeking to recover from commercial injury. The question of first impression: whether compliance with the FDCA and NLEA regulations pertaining to food and beverage labeling requirements precluded POM’s right to bring a private action alleging unfair and deceptive trade practices against a competitor, in this case Coke, under the Lanham Act. Now that The Supreme Court has ruled, we know the answer to that question. And it’s a resounding “no.”

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A Billboard In Peru, And The Obsolescence Of The Commercial Speech Doctrine

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By: Brian J. Meli

For nearly forty years the fault line dissecting freedom of speech under the First Amendment has been a concept as widely accepted in judicial circles as Newton’s law of gravitation in scientific ones. One side of that line belongs exclusively to commercial speech, more commonly known by its street name: advertising. The other side is the domain of non-commercial speech, which is more or less anything that isn’t advertising. Both are protected, but only the latter is considered sacred, and therefore except for a few rare instances (“fire!” in a crowded theater) it’s off-limits to regulators. The distinction is so widely recognized that no one gives it much thought anymore. If you’re the CMO of an e-cigarette company, you know there are limits to what you can say in your advertising, and on your labeling and packaging. But if you’re invited to appear on 60 Minutes, or you’re interviewed by the Wall Street Journal, you’re largely free to express your personal opinions about your product. Whether or not you’re actually conscious of the fact that the former is commercial speech and the latter likely isn’t, you inherently know there’s a difference. 

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The 2014 ANA Advertising Law And Public Policy Conference Answers Many Questions, Poses Even More

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By: Brian J. Meli

The 2014 ANA Advertising Law and Public Policy Conference is now officially in the books. The two-day conference held in Washington D.C. featured a formidable line-up of industry experts weighing in on a wide variety of hot-button topics in advertising law. The conference was both broad in scope and ambitious by nature, bringing practitioners up to speed on the current state of legal and regulatory affairs, and endeavoring to sketch a workable outline for what the future may hold in an industry reshaping itself daily through technology.

As you might expect from a group of speakers as varied as attorneys general, CIOs and members of academia, there were diverse viewpoints on a wide range of topics. But as the event got going, the topics began pooling into three discernable themes:

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The Most Important Question In The Michael Jordan First Amendment Case Was The One That Didn’t Get Asked

iStock_000015750550_Small By: Brian J. Meli

Last month, we looked at the Michael Jordan v. Jewel Food Stores Seventh Circuit appellate decision in some detail here. But there was more to this decision—a reversal of the district court’s finding that a tribute ad constituted fully protected First Amendment speech—than what was decided. The appeal had a favorable outcome for Jordan, who got the lower court’s decision tossed and his case remanded, and who will likely be compensated handsomely for his persistence. But did Jordan’s legal team miss an opportunity to double down on his chances for success and establish some important precedent in the process? Continue reading

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