Davis & Gilbert LLP

Since 1934, when we structured the deal for the original radio -"soap opera"- the first advertiser-created broadcast program, Davis & Gilbert has been the preeminent law firm for all issues relating to the advertising, marketing and communication industry. We represent more clients in these areas than any other law firm, and no firm has more attorneys dedicated to this work than Davis & Gilbert.

Our attorneys regularly advise on all issues relating to the creation, production, and dissemination of all kinds of advertising, marketing, and promotion material across all media. We have unmatched expertise in addressing issues generated by the influx of interactive technology and consumer-generated content. In this way, we are uniquely able to help clients adapt and succeed in this world of rapid change.

Davis & Gilbert's Advertising, Marketing & Promotions Practice Group achieved a first-tier ranking in the 2010 "Best Law Firms" by U.S. News & World Report - Best Lawyers in the categories "National - Advertising Law" and "New York - Advertising Law."  Also, for the sixth consecutive year, the firm has been ranked #1 in the nationwide category Advertising: Transactional & Regulatory by Chambers USA 2011, America's Leading Lawyers for Business, the leading research publication in the legal industry.  In addition to recognizing several attorneys in the practice area, Chambers USA recognizes the group for its, "exhaustive advertising expertise" and "remarkably high caliber of attorneys and complete coverage on advertising law issues."  The group also earned a ranking in the categories "client service" and "commercial awareness," two newly created categories this year. Furthermore, the 2011 edition of The Legal 500: United States, a law firm referral guide, ranked Davis & Gilbert in the top tier for Media, Technology and Telecoms: Marketing and Advertising.  Clients praised the firm for being "top-notch" and commended the group for its "complex risk assessments and navigating difficult situations" in the areas of traditional advertising and new media.

OUR CLIENTS
Davis & Gilbert’s clients are among the most visible in all media; our advertising and marketing communication agency clients range in size from small start-ups and mid-size creative shops to regional and national firms, as well as diversified global holding companies and their operating companies. Our advertiser and marketer clients reflect some of the most well-known brand names in the United States and around the world.

While our clients sell diverse products and services, their common element is that they all need to market, promote, advertise and sell. Davis & Gilbert attorneys have unique knowledge and perspective that distinctly benefits in-house counsel seeking to keep their businesses at the leading edge of competition.

UNEQUALED INDUSTRY EXPERTISE
We know everything there is to know about the business of advertising and marketing communications because we are involved in every phase of our clients’ work. From concept to distribution, we work with clients on all contractual, regulatory, intellectual property, media and business law issues that relate to advertising, media, promotion and marketing.

Whether advising on traditional or digital media or marketing strategies, our advertising and marketing attorneys have particular expertise in the business needs and regulatory concerns of companies in all key industry segments, including wireless communications, consumer electronics, food, health, cosmetic, fitness, automotive, retail and alcoholic beverages. We are involved in every aspect – from intellectual property protection to regulatory issues, including governmental, legislative and self-regulatory concerns – for all critical and sensitive areas of law, such as marketing to children, health claims, negative-option marketing, branded content, viral marketing, and consumer-created content. In advising numerous trade associations, speaking before government groups and advocating for our clients, we have established countless essential regulatory principles that apply to these areas. We continually define the critical issues of tomorrow and advise clients how to best prepare for these eventualities.

A core area of our practice focuses on all kinds of promotional activities, including sweepstakes, sponsorships, tie-ins and cutting-edge marketing techniques such as word-of-mouth, viral, and guerilla. The use of wireless devices, particularly cell phones, to engage consumers is one of the most exciting growth areas in our marketing practice. Through our longstanding representation of a leading wireless communications carrier, we are especially well-suited to analyze and structure the most innovative promotional programs distributed by way of wireless devices.

Content generation has moved from the traditional creators of films, television programs, songs, books and plays, to the advertisers, marketers and agencies that create, fund, or support these works. We work with clients in all these areas to structure and facilitate the related arrangements. With the rise of digital media and the adoption of technology that allows for the dissemination of consumer generated content, we counsel clients on how to best use and control such content while avoiding unnecessary risk.

As the leader in advertising, marketing and promotions law, our practice continues to expand with each technological innovation. Davis & Gilbert has been with the industry since inception and we are uniquely positioned to lead the way for future developments as they evolve.

INDUSTRY ASSOCIATION AFFILIATIONS AND/OR REPRESENTATIONS
Davis & Gilbert attorneys frequently are called upon by the following professional groups for guidance on issues, forms and procedures:

• American Association of Advertising Agencies
• American Advertising Federation
• American Marketing Association
• Association of National Advertisers
• Council of Public Relations Firms
• Counselor's Academy of the Public Relations Society of America
• Direct Marketing Association
• Mobile Marketing Association
• Promotion Marketing Association

REPRESENTATION OF CLIENTS BEFORE THESE SELF-REGULATORY/INDUSTRY GOVERNING BODIES:

We have successfully brought or defended advertising challenges before all of the following organizations, establishing key principles for substantiation, defining national vs. local advertisers, and establishing critical demonstration principles for toy advertisers:

• National Advertising Division of the Council of Better Business Bureaus (NAD)
• Children's Advertising Review Unit (CARU)
• National Advertising Review Board (NARB
• All major broadcast and cable networks and stations standards and practices groups, including ABC, NBC, CBS, MTV, Nickelodeon, ESPN, WB

REPRESENTATIVE ENGAGEMENTS

• Davis & Gilbert was retained by the two leading advertising industry trade associations, the American Association of Advertising Agencies and the American Advertising Federation, to file comments on behalf of the advertising industry with the Federal Trade Commission regarding possible revisions to its "Guides Concerning the Use of Endorsements and Testimonials in Advertising."
   
• Davis & Gilbert was retained by the three key advertising industry trade associations, American Association of Advertising Agencies, the American Advertising Federation and Association of National Advertisers, to file comments on behalf of the entire advertising industry with the Federal Trade Commission regarding revisions to its "Guides for the Use of Environmental Marketing Claims."
   
• We represented Verizon Wireless in the development and launch of its groundbreaking V CAST service which provides broadband access to news, entertainment and other video content on its 3G wireless network. We also negotiated the company’s groundbreaking deal with You Tube.
   
• We represented Verizon Wireless in a joint venture between Verizon Wireless and MTV/ RealNetworks' Rhapsody service, to create a cutting-edge integrated digital music service that consumers can access via their PC, portable music device or mobile phone.
   
• We advised Verizon Wireless on a transaction with ESPN to provide for an ESPN-branded experience on Verizon Wireless phones focused around ESPN content.
   
• We represent Goodby Silverstein & Partners and handled a promotional campaign for the California Fluid Milk Processors Board, a trade organization designed to promote the sale and consumption of milk, involving the placement of chocolate chip cookie scent strip strips in outdoor bus shelters. Our work included drafting and negotiating the production and licensing agreements relating to the scent strips; the distribution agreements relating to distribution and placement of the scent strips; the advertising and marketing laws pertaining to “guerilla” tactics; insurance and liability issues; and regulatory and consumer protection issues.
   
• On behalf of MediaVest, a major media agency, and BBDO, a global advertising agency, we worked on the legal matters relating to the creation, production and broadcast of the television program “Gillette Young Guns Fast Cars and Superstars”. The firm handled production, integration and network license agreements for the celebrity reality-based racing driver television program.
   
• We represent the WPP network of companies and, among countless other creative projects, worked on the production and distribution of a series of “webisodes” featuring Jerry Seinfeld and Superman for WPP’s client, American Express. In addition to traditional television commercials and significant online content, a six-minute short film, The Adventures of Seinfeld and Superman, aired in primetime on NBC.
   
• Davis & Gilbert worked with Amazon in the formulation of interactive advertising policies and guidelines in connection with its implementation of interactive advertising. The goal was to balance diverse legal, regulatory, policy issues with the company’s business and marketing objectives.
   
• Working with the American Association of Advertising Agencies (AAAA), we have drafted standard forms, advised on value compensation metrics, advised on industry developments, and represented the interests of the industry on both regulatory and litigation matters.
   
• We represent Wieden + Kennedy and prepared all of the production services agreements and releases relating to the distribution of a full-length film entitled “Sneaker Heads,” on behalf of Nike.
   
• We represent BBH and negotiated the production services agreements with @radical.media and negotiated the distribution agreement with MTV networks relating to the television series “Gamekillers.”
   
• We negotiated a settlement with the Screen Actors Guild over athletes/endorsers appearing in Nike advertising, which led to the creation of an industry allocation model for pension and health contributions arising from athlete/endorser's services.
   
• We have handled numerous leading "lookalike" and "soundalike" cases for the advertising industry involving plaintiffs such as Carlos Santana, Herb Alpert, Jacques Cousteau, Julia "Butterfly" Hill, the Fat Boys, and many others.
   
• We have presented at the FTC’s Green Lights and Red Flags National Workshops on the use of advertising disclosures.
   
• We were instrumental in expanding the broadcast networks’ acceptance of personal products, including feminine hygiene products and undergarments.
   
• We played a key role in developing the form insertion order for Internet advertising used by the IAB/AAAA.
   
• We negotiated a cutting-edge, multinational media buying agreement between a large media buying agency and an international entertainment conglomerate.
   
• We defended the advertising industry against efforts by the Screen Actors Guild to classify stunt drivers as principals in television commercials.
   
• We have represented major infomercial companies in FTC investigations, including those involving compliance with the Mail and Telephone Order Merchandise Rule.
   
• We have defended numerous false advertising and deceptive practice cases before state and local agencies involving inadequate substantiation, test data and claim interpretation for products and services in the hi-tech, cosmetic, food, drug and automotive industries.
   
• We advised and drafted the rules in connection with the development of the first billion-dollar sweepstakes promotion.
   
• We represented our client in the development of the first auction website for real estate, which included drafting auction terms and conditions, and advising on applicable auction laws.
   
• We represented Frito Lay in connection with the first Internet auction directed to children, including drafting auction terms and conditions, and advising on applicable auction laws.

Representative Litigation Successes:

• Davis & Gilbert represented Verizon Wireless in the settlement reached among 32 state attorneys general and three of the nation’s largest wireless telephone carriers involving pricing and signal coverage disclosures, among other issues.
   
• We represented Affinion Corporation in a settlement resolved with 16 state Attorneys General that involved a major national bank and their marketing practices for membership clubs using trial offer marketing and key solicitation devices
   
• We represented a major pharmaceutical company in a settlement with 12 states relating to advertising and marketing practices for smoking cessation products.
   
• We successfully defended American Isuzu Motors in the Federal Trade Commission and multi-state action against automobile industry lease and finance advertising practices.
   
• We defended a major interactive marketer in litigation over its marketing practices and affiliate marketing program
   
• On First Amendment grounds, we successfully defended advertising agency DeVito/Verdi and the ACLU in a libel and privacy case involving the advertisement "They Finally Found an Answer to Overcrowded Prisons. Smaller Prisoners."
   
• In the U.S. Supreme Court’s landmark case of Nike v. Kasky, raising First Amendment and commercial speech issues, we prepared the amicus brief for the 4As, ANA and AAF.
   
• We successfully have defended "negative option" marketing practices for clients, both at the federal and state regulatory levels, and in state enforcement actions from New York to California.
   
• We defended a trademark infringement action brought against American Express in connection with its MY LIFE MY CARD advertising campaign that was created by our client Ogilvy & Mather, American Express’s long standing advertising agency.
   
• We obtained summary judgment for the advertising agency TBWA Worldwide, dismissing a $42 million indemnification action brought by its former client Taco Bell.
   
• We successfully defended McDonald’s and its advertising agency, DDB Needham Worldwide, in an action by the Estate of James Dean over the use of a James Dean lookalike in an Australian television commercial for McDonald’s.
   
• We obtained a favorable settlement for Miller, its advertising agency and Joe Piscopo, in an action by the rap group “The Fat Boys” alleging that a television commercial for Miller Lite Beer copied, among other things, visual elements of the group’s persona. The plaintiffs also brought claims for sound recording and musical composition copyright and libel.
   
• We filed an amicus brief in federal court on behalf of an advertising agency in a class action against DeBeers diamonds. In response to our amicus brief, plaintiffs voluntarily dismissed their federal law false advertising claims and the court dismissed the plaintiffs’ state law false advertising claims.
   
• We have successfully defended an online media company in consumer class actions alleging deceptive practices in connection with the distribution of the company's software that delivers pop-up advertisements.
   
• We defended a company that markets consumer products through infomercials in a class action alleging that it sends and charges consumers for products that they have not ordered.
   
• We successfully defended a copyright infringement claim brought against the advertising agency that created the “Bud-Weis-Er” frogs campaign by an individual who claimed to have created the characters while he was a bartender.
   
• We prosecuted a copyright infringement matter for Covington Industries to enforce a copyright on one of their best selling and profitable plaid fabric designs. In a novel approach, we proved that our client’s plaid design contained original coloring, spacing and weaving, and thus merited full copyright protection.
   
• We successfully negotiated the settlement of a copyright infringement action brought against RJR Tobacco Company and its former marketing agency, Kevin Berg & Associates, for the use of a graphic image in advertising and promotional materials. 
   
• We successfully defended PepsiCo. Inc. and its advertising agency in lawsuits alleging copyright infringement and misappropriation of ideas relating to advertising and marketing campaigns.
   
• We successfully obtained at trial a complete dismissal of a copyright infringement case brought by composers of musical compositions claiming infringement arising from foreign and cable distribution of daytime dramas produced by our client, Procter & Gamble, and others.
   
• We represented McKinney & Silver and its client, Audi, in a copyright and trademark suit in one of the few cases in the country addressing a plaintiff’s claim for “indirect profits” under the Copyright Act.
   
• We successfully defended AT&T and Young and Rubicam in a suit alleging copyright and trademark infringement when a mural by the plaintiff was filmed in the background of a commercial. We proved that the mural did not function as a trademark and the lawsuit was dismissed.