Advertising and Marketing

Overview

Honigman’s Advertising and Marketing Practice Group is a cross-disciplinary team of experienced attorneys who work with clients to avoid advertising pitfalls, comply with federal and state regulations arising in the advertising context, and litigate/defend false advertising claims.  We work closely with our clients’ in-house legal team on negotiating best-in-class agreements for agency relationships, ad production, promotional events, product sampling, sponsorships and sponsored content, product placement, and social media campaigns.  We provide advice on regulatory and legal guidelines for sweepstakes, franchising and claim substantiation.  We also have experience with strategies for managing first-party data, retargeting and lookalike selection, and a variety of multi-party interactions in the programmatic ecosystem.  Our attorneys serve advertiser clients in a wide range of industries, including automotive, consumer goods, food and beverage, hospitality, real estate, digital/technology, pharmaceuticals and life sciences.

Our services include:

IP/Trademark

  • Reviewing advertisements and product labels and packaging for trademark issues, including avoidance of third-party issues and proper trademark usage
  • Preparing and negotiating sponsorship/product placement deals and related licensing agreements
  • Handling dispute resolution arising in the advertising context, including trademark and copyright infringement and false advertising claims
  • Developing overall IP strategies to help maximize the value of clients’ brand portfolios
  • Reviewing certification mark programs
  • Advising clients regarding patent marking issues
  • Review of pharmaceutical patents for FDA Orange Book listing eligibility
  • Advising pharmaceutical clients regarding off-label marketing

Agency Relationships

  • Negotiating and drafting agency-of-record and limited-agency agreements for creative, packaging, public relations, digital and media
  • Developing project-based service agreements for specific agency tasks, such as managing a group of independent bloggers or implementing cross-platform advertising campaigns
  • Assisting clients with agency review and request-for-proposal projects
  • Incorporating third-party agency terms into first-party service agreements to protect brand equities while allowing the agency to exercise day-to-day control

Internet & Social Media

  • Advising clients regarding the risks and payoffs for advertising on Instagram, Facebook, Twitter and other social platforms
  • Assisting with threat models and response strategy for social-listening programs
  • Helping clients develop privacy policies, website terms-of-use and customer loyalty programs
  • Drafting cross-license agreements between advertisers and app developers for experiential marketing and augmented reality campaigns
  • Negotiating agreements for first-party data matching and profile augmentation
  • Developing agreements to implement programmatic strategies, including retargeting and lookalike targeting in markets for display ads and online video
  • Drafting terms for paid content generation to require compliance with FTC guidelines for sponsorship disclosures
  • Providing guidance regarding email marketing campaigns and CAN-SPAM regulations
  • Developing multi-party agreements for reporting performance metrics of pre-roll ads on YouTube, Hulu and other platforms
  • Negotiating production agreements for commercial video production, including brand equity licensing and SAG-AFTRA union obligations
  • Drafting agreements with athletes, performing artists and other influencers that integrate product endorsements with video, live appearances and social media

Sweepstakes/Promotions

  • Reviewing sweepstakes, contests and business promotions for compliance with state, federal and international regulations
  • Negotiation and review of agency agreements with third-party sweepstakes managers

Green Marketing

  • Reviewing advertisements for compliance with various FTC guidelines, including Green Guides
  • Reviewing product labels and packaging for compliance with FTC guidelines and applicable federal and state laws

Franchise

  • Reviewing advertisements in the franchised business context for compliance with franchise laws

False Advertising, Right of Publicity and Lanham Act

  • Handling litigation involving false advertising claims
  • Handling litigation involving rights of publicity in the advertising context
  • Reviewing product endorsements under federal and state laws and regulations
  • Defending clients in false advertising matters before the National Advertising Division of the Council of Better Business Bureaus