Excerpts from "Trademarks, Incorporation, FTC Regulations and More" presented December 8, 2010 at AffCon-Miami

1. INTERACTIVE LEGAL CLINIC Trademarks, Incorporation, FTC Regulations and More December 8, 2010 AffCon – 2010 Miami Presented by the Internet Law Center and Venable

2. 15 Things Every Affiliate Should Know to Avoid Legal Liability

3. PRESENTED BY TEXT Brian Benenhaley Columbia, SC Thomas A. Cohn New York, NY TEXT Bennet Kelley Santa Monica, CA Ari N. Rothman Washington, D.C.

4. CORPORATE FORM LIABILITY 2. AFFILIATE LIABILITY 3. TRADEMARK RIGHTS 4. COPYRIGHTS RIGHTHAVEN 5. CAN-SPAM 6. DOT COM DISCLOSURES 7. DECEPTIVE FORMAT 8. BLOGGER RULE 9. ENDORSEMENTS 10. PRODUCT CLAIMS 11. PROMOTIONS 12. NEGATIVE OPTIONS 13. PRIVACY 14. USE OF WORD FREE 15. GOLDEN RULE THE ENDTHANK YOU FOR COMING THE BIG 15

5. #1 CORPORATE FORM LIABILITY A B

7. THE BASICS

8. TM ISSUES IN AFFILIATE CAMPAIGNS likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services,

9. Trademarks and domain names Cybersquatting Legitimate Use Fans and Enemies

10. Key word search and trademarks Initial Interest Confusion Use of another trademark “in a manner calculated to capture initial consumer attention, even though no actual sale is finally completed as a result of the confusion.” Brookfield Communications Inc. v. West Coast Entertainment Corp., 174 F.3d 1036 (9th Cir. 1999). B Tal 10

11. TM Use Limited to Search Term 11

12. “[A]s a matter of law[bidding on TM without use in ad does] not result in any actionable likelihood of confusion under the Lanham Act.” TM Use Limited to Search Term 12 J.G. Wentworth SSC Ltd v. Settlement Funding LLC, 2007 WL 30115 (E.D. Pa. Jan. 4, 2007) (granting motion to dismiss).

13. Display of competing search ad which does not mention defendant’s name, “could mislead [a] consumer to believe the link is associated with” Plaintiff. TM Use Limited to Search Term 13 Morningware, Inc. v. Hearthware Home Products, Inc., 2009 WL 3878251 (N.D. Ill. Nov. 16, 2009)

14. © - Copyright Righthaven DMCA

15. #5 – CAN-SPAM ACT

17. Principal Requirements

19. Mobile Address

20. Potential Senders

21. Potential Charges

22. Revocable

23. Must be

24. Clearly legible,

25. In sufficiently large type

31. Florida and New York for games of chance with prizes exceeding $5,000

32. Bilingual

33. Puerto RicoRegistration Florida and New York if prizes exceeds $5,000 Rhode Island if retail establishment offers a prize in a game of chance valued at more than $500 Arizona if intellectual skill contest requiring purchase to enter

34. New California Law on AMOESB 1400 (effective 1/1/09) Must include AMOE disclosure in solicitation material Official Rules Elsewhere if no rules Must be clear and conspicuous statement of the no-purchase-or-payment-necessary In understandable terms The no-purchase-or-payment-necessary message included in the official rules shall be set out in a separate paragraph in the official rules and be printed in capital letters in contrasting typeface not smaller than the largest typeface used in the text of the official rules.

35. #13 ONLINE PRIVACY

36. It’s Really Simple (not)

37. 3 TAKEAWAYS PRIVACY POLICIES DATA SECURITY WHERE ARE WE GOING

38. CONSUMERS DON’T READ ONLINE POLICIES By placing an order via this Web site on the first day of the fourth month of the year 2010 Anno Domini, you agree to grant us a non transferable option to claim, for now and for ever more, your immortal soul. Should We wish to exercise this option, you agree to surrender your immortal soul, and any claim you may have on it, within 5 (five) working days of receiving written notification from gamesation.co.uk or one of its duly authorisedminions.

39. 2 BIGGEST PRIVACY POLICY MISTAKES (1) DON’T USE A PRIVACY POLICY HAND-ME-Down – ONE SIZE DOES NOT FIT ALL(2) SAY WHAT YOU DO AND DO WHAT YOU SAY

40. DATA SECURITY IS SERIOUS BUSINESS FTC: THE EXISTENCE OF A SECURITY BREACH DOES NOT NECESSARILY MEAN NO ENFORCEMENT ACTION; BUT THE ABSENCE OF A BREACH DOES NOT MEAN NO ENFORCEMENT ACTION IF SECURITY IS STILL INADEQUATE

41. THE FUTURE 2011 – PRIVACY A PRIORITY IN CONGRESS 2011 – EU REWRITES PRIVACY LAWS INCREASED STATE REGULATION

42. #15 – THE GOLDEN RULE

43. OR DON’T DO ANYTHING THAT WOULD TICK OFF GRANNY

44. THANK YOU