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REPRESENTATIVE ENGAGEMENTS

  • Davis & Gilbert represented a major automobile manufacturer and its advertising agency in connection with a Federal Trade Commission (FTC) inquiry regarding a commercial for a vehicle, which was one of the first investigations by the FTC involving demonstrations.
  • We represented a major videogame hardware company in an FTC investigation relating to alleged false advertising and unsubstantiated claims for the introduction of a new videogame device.
  • We are representing several advertising clients and platform providers on privacy and data collection legal issues in connection with various new advertising opportunities and technologies on mobile devices.
  • We served as co-counsel in representing a Fortune 100 company in three successful challenges against a major competitor before the National Advertising Division (NAD) regarding comparative pricing and performance claims in advertisements for various products and systems of the competitor.
  • We advised The J.M. Smucker Company in its first-ever United States Olympic Committee (USOC) sponsorship covering the 2014 Sochi Winter Games and the 2016 Rio Summer Games, and advised and negotiated more than 20 Olympic athlete endorsement agreements in support of the sponsorship. We also advised Smucker on the extension of its USOC sponsorship to include the 2018 Pyeongchang Games and the 2020 Tokyo Games.
  • We represented a worldwide advertising agency network in connection with a major credit card company’s integrated NFL marketing campaign, “My Football Fantasy,” including advising on the structure and helping draft rules and various disclosures for the sweepstakes.
  • We advised a global experiential marketing agency on the structure and legal compliance issues relating to the Angostura Bitters “Best Bartender Competition,” a drink recipe skill contest where bartenders competed to create the best cocktail using Angostura Bitters.
  • We successfully defended helmet manufacturer Cascade Sports in an advertising challenge brought by Bauer Hockey Inc. before the NAD regarding various performance and superiority claims. The NAD concluded that many of our client’s performance claims were substantiated and that our client’s equipment provided maximum protection.
  • We were retained by two of the leading advertising industry trade associations, the American Association of Advertising Agencies (4A’s) and the American Advertising Federation (AAF), to file comments on behalf of the advertising industry with the Federal Trade Commission (FTC) regarding possible revisions to its “Guides Concerning the Use of Endorsements and Testimonials in Advertising.”
  • We were retained by the three key advertising industry trade associations, 4A’s, the AAF and the Association of National Advertisers (ANA), to file comments on behalf of the entire advertising industry with the FTC regarding revisions to its “Guides for the Use of Environmental Marketing Claims.”
  • We were retained by the 4A’s to file comments on behalf of the industry with respect to its position on the FCC’s “set-top box” rule, which addresses cable companies’ requirement that consumers use cable boxes to access their programming.
  • 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 YouTube.
  • 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 computer, 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 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 and policy issues with the company’s business and marketing objectives.
  • Working with the 4A’s, 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 represented Wieden + Kennedy in preparing production services agreements and releases relating to the distribution of the full-length films Sneaker Heads and Battlegrounds.
  • 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 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 ads for 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 Interactive Advertising Bureau (IAB)/4A’s.
  • 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 (SAG) 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 a 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 a 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 its 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 have successfully 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’ 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 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 violations and libel.
  • We filed an amicus brief in federal court on behalf of an advertising agency in a class action against De Beers diamonds. In response to our amicus brief, the 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 who claimed 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 & 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.