Practice Areas & Industries: Manatt, Phelps & Phillips, LLP

Practice/Industry Group Overview

The business of advertising, marketing and media is fast-paced, technology-driven, multi-disciplinary, entrepreneurial – all within a conflicting maze of federal, state and industry regulation.  Whether you’re a multi-national corporation, an ad agency, a broadcast or cable company, an e-commerce business, or a retailer with Internet-driven promotional strategies, you want a law firm that understands what you do and helps you get it done.  Our Advertising, Marketing and Media Group clients include some of the world’s most important advertising agencies, media giants, consumer product companies and brands, and we give them the business counsel they need to create, disseminate and defend their marketing messages around the world.

Manatt’s advertising, marketing and media practice is one of the most comprehensive and renowned in the nation.

Practical Strengths
We tailor our services to your needs, no matter how broad or narrow they may be:

• Your business communicates a branding message using a shifting blend of traditional and evolving media.  Manatt works in your world, combining advertising attorneys who have high-level broadcast and Internet experience with a renowned entertainment and media practice and an intellectual property group skilled in multimedia and Internet issues.
• Your business transcends geographic limitations.  Manatt works in your world, with a growing New York-based advertising group, a comprehensive West Coast entertainment and media presence, an advertising litigation and regulatory base in Washington, D.C., and a strong national litigation focus.
• Your business may be heavily regulated, governed by the Federal Trade Commission, the Food and Drug Administration, the Federal Communications Commission, other federal and state agencies, and industry governing bodies.  Manatt works in your world, with attorneys who have served in senior FTC posts and who regularly represent clients before that agency, the FDA, FCC, National Advertising Division and the National Advertising Review Board of the Council of Better Business Bureaus, other industry regulatory groups, and courts around the country.
• Your business needs information on the latest court decisions, regulatory changes and their interaction with technology.  Manatt works in your world, with a weekly electronic newsletter on advertising that offers our insight on such hot button issues as spam, false advertising, trademark protection, labeling, on-line promotions, the fair use doctrine and Internet fraud.
• Your business requires counselors who understand the technical issues involved with ad substantiation, including product testing, regulation, and consumer perception.  Manatt’s attorneys combine decades of collective experience with hard work and attention to detail to understand the complex, and to communicate it more simply for the benefit of busy decision makers.

No matter how large or small your company, we can meet your advertising and marketing law needs.  You can draw on our industry-leading legal and strategic capabilities in advertising, marketing, media and promotion, a powerful national litigation presence, sophisticated transactional abilities, enhanced government access and a range of specialized resources in other areas for help with any aspect of your advertising and marketing.

Partnership With You
Manatt attorneys know how to help you design and implement advertising and promotional campaigns that comply with the law as they succeed in the marketplace.  We don’t burden you with layers of review dedicated to telling you what you can’t do.  Instead, with some of the leading attorneys in the field and offices based in the major industry and regulatory centers, we handle the details so you can focus on creating advertising that works – the right way.

Services Available

Advertising Review

We review advertising and promotional campaigns from the concept stage through final dissemination.  Our attorneys have practical working knowledge of the advertising industry, including broadcast and print advertising, direct mail and the Internet and use it to protect you as we:

• Review scripts, storyboards, and copy
• Review substantiation for express and implied claims
• Advise on privacy and publicity issues and the likelihood of challenges
• Identify trademark, copyright, and other intellectual property issues raised by advertising material
• Conform your advertising to the policies, standards and guidelines of all media, and answer any challenges by third parties.

Our hands-on industry experience makes reviews thorough and effective.  For example, our attorneys have worked as Director of Broadcast Standards and Practices at the American Broadcasting Co., and senior legal counsel with the Federal Trade Commission.  We know what to look for – and get it right.

Advertising Controversies and Litigation

Manatt has extensive advertising litigation experience in some of the most high profile advertising disputes of the last decade.  If you face any challenges or disputes involving your advertising and marketing claims or strategies, or those of your competitors, Manatt provides zealous advocacy.  Our attorneys frequently appear on behalf of clients before the courts, the Federal Trade Commission and other federal agencies, state attorneys general, and the advertising industry’s self-regulatory bodies, the National Advertising Division and the National Advertising Review Board of the Council of Better Business Bureaus, to address allegations of:

• False advertising
• Unfair competition
• Product disparagement
• Trademark and copyright infringement
• Breach of privacy and publicity rights
• Contract violation involving the Screen Actors
• Guild and other talent organizations
• Abusive call center, telemarketing and e-mail practices
• California’s unfair competition law (Business & Professional Code § 17200) and false advertising law (§ 17500).

Manatt attorneys have represented some of the nation’s leading consumer products, beverage and pharmaceutical companies in high-stakes advertising litigation under the Lanham Act and related state and federal laws.   We have obtained, and defended against, rapid response injunctive relief.

We routinely work with clients planning to launch controversial ad campaigns, to help them design the claim substantiation from the ground up, with a view to defending the claims against possible future challenge by competitors or regulators.   Our advertising litigators understand what may happen to an ad campaign under the acid test of litigation.

Advertising Agreements

Effective contractual agreements are at the heart of interaction between advertising agencies and their clients.  Manatt advertising attorneys, working closely with colleagues in our entertainment and media law group, skillfully negotiate and draft any contract you may need:

• Agency-client agreements
• Talent and celebrity endorsement contracts
• Production contracts
• Advertising, entertainment and media contracts
• Licensing agreements for musical compositions, sound recordings, and literary works
• Production and distribution agreements for motion pictures, television, home video and DVD Copyright agreements for the transfer of traditional works to digital media and the Internet

Promotions and Sweepstakes

We are thoroughly familiar with the complex web of state and federal consumer fraud, protection and disclosure laws governing all your promotional advertising campaigns:

• Games of chance
• Contests of skill
• Consumer rebate, premium, and coupon offers
• Club membership and loyalty/incentive programs
• Online fee-based games, including fantasy sports leagues
• Internet consumer promotions

Our attorneys draft official rules, review promotional scripts, copy, and advertising materials, and counsel you on all issues relating to Internet privacy protection issues. We have the extensive experience to represent you in inquiries from Federal Trade Commission, and our work with the National Association of Attorneys General Subcommittee on Sweepstakes Promotion gives us a solid foundation to handle state requirements on promotions and gaming.

Pharmaceutical Marketing and Promotion

Our attorneys have decades of experience in the complex and challenging field of pharmaceutical promotions and direct-to-consumer (DTC) marketing.  We have worked with advertisers to get claims approved through the FDA Division of Drug Marketing, Advertising and Communications (DDMAC), and to challenge the unfair claims of our client’s competitors.  We have both prosecuted and defended high stakes advertising challenges at the NAD, FTC, FDA, state attorneys generals, and the federal courts.  Our matters have included the following:

• Forming the Aspirin Foundation of America, the chief trade association of aspirin producers, and representing the Foundation in litigation, regulatory and legislative matters for decades through the so-called “aspirin wars”
• Challenging and defending ad claims for over-the-counter (OTC) and prescription drugs, and infant formulas
• Petitioning the FDA to review unfair claims that create public health risks, and to regulate sensibly in areas of agency scrutiny
• Advising clients regarding compliance with FTC consent orders
• In conjunction with our firm’s leading healthcare practice, defending clients against claims of Medicare/Medicaid fraud and abuse, conducting internal investigations, and designing programs to ensure sales and promotions practices comply with the complex web of pricing and promotions laws, regulations and guidances.

Internet

The Internet is crucial to your advertising strategies in far more than sweepstakes and promotions.  Manatt is in the forefront of evolving Internet law.  We can advise you on all aspects of advertising-related issues, such as:

• Advertising claims and disclaimers
• Sponsored links and the use of copyrights and trademarks
• Privacy policies and data collection, including the host of issues raised by the Children’s Online Privacy Protection Act
• Website terms and conditions
• Linking practices
• Domain name and trademark protection

Intellectual Property Protection

Manatt has the capability to advise on even the most complex advertising-related issues.  For example, our attorneys have handled trade dress and copyright protection for the labels of various Napa and Sonoma wineries.  We are also closely involved in the protection and proper use of musical works in advertising, through membership in the Executive Committee of the Entertainment Law Initiative sponsored by the National Academy of Recording Arts and Sciences.  We have a national reputation in Internet and e-commerce matters, and regularly handle trademark, copyright, unfair competition and right of publicity actions involving advertising.

Trade Associations

If you are an active member of an advertising industry trade association, Manatt protects your interests.  We represent industry associations, attend association meetings, and present associations’ views and promote their rights at all levels of government.  Our attorneys represent trade associations in dealings with the Federal Trade Commission, the Food and Drug Administration, the Environmental Protection Agency, state attorneys general, the National Conference of Commissioners on Uniform State Laws, and other bodies that shape advertising policies, regulations and legislation.

Clients:
Amazon.com, Inc., Bayer Corporation , Bell South, Best Buy Co., Inc., Coors, Den-Mat Corporation, Diageo North America, Direct Holdings, Inc., D. L. Blair, Dreamworks, Dyson, E. & J. Gallo Winery, Endemol, Eveready Battery Company, Inc., Expedia, Fallon Worldwide, General Mills, Inc., Harley-Davidson, Hearst Corporation, Hilton Hotels Corporation, HSN, Invista, Jamba Juice, Kimberly-Clark Corporation, Lenovo, Magazine Publishers of America, Mark Burnett Productions, MasterCard International, Match.com, LP, Mattel, Inc., Miller Brewing Company, Nature's Bounty, Papa John's International, Inc., Profile Products, Publisher's Clearinghouse, Reckitt Benckiser, Rexall Sundown, Rodale, Inc., SBC Communications, Schick Manufacturing, Inc., Shop NBC, Sony BMG, Sun Microsystems, The Coca-Cola Company, The Martin Agency, The Reader's Digest Association, Inc., The Scotts Company, Ticketmaster, Time, Inc., Tommy Hilfiger, UniWorld Group, Inc., W.B. Doner, Yahoo! Inc., Zila Nutraceuticals