Edited by
Jeffrey D. Knowles 
and
Gary D. Hailey
Email Marketers Win Decisive Legal Victory
Recently, a jury considering Beyond Systems v. Kraft Foods unanimously found that anti-spam plaintiff Beyond Systems, Inc., an alleged Internet service provider, is "primarily or substantially" engaged in filing anti-spam lawsuits. Therefore, Beyond Systems is not a bona fide "Electronic Mail Service Provider" under California's anti-spam statute, or a bona fide "Interactive Computer Service Provider" under Maryland's anti-spam statute. This jury finding is important because it paves the way for the trial judge to rule as a matter of law that service providers that are "primarily or substantially" engaged in filing anti-spam litigation cannot sue under these state statutes. Such a ruling would, in effect, require plaintiffs to be bona fide to maintain state law causes of action in addition to federal CAN-SPAM lawsuits, and thereby provide a complete defense to email marketers sued for violations of state anti-spam laws.
Click here to read a detailed account of the case.
Analysis
Why Care About Counterfeiting?
If you are selling a successful product via direct response, write Venable attorneys Gregory J. Sater and Christopher S. Crook in the July 2012 edition of Electronic Retailer magazine, it is being counterfeited somewhere. The pair write that marketers have transitioned from an "If I get counterfeited" world to a "When I get counterfeited" world. The article points out that "every company must decide for itself whether and to what extent to register its trademarks, copyrights and patents and to fight the counterfeiters" based on those intellectual property rights. It also shares insights from a number of leading direct marketing executives who discuss how their companies have combatted counterfeiting.
Click here to read the article, which begins on page 26.
Some Changes to New Jersey's Gift Card Law Take Effect September 1
New Jersey's unclaimed property law was amended on June 29 when Senate Bill 1928 (SB1928) was signed into law. In a recent client alert, Venable attorneys Melissa Landau Steinman and Erin E. Seder write that although the new law was intended to fix some of the infirmities of the old unclaimed property law, the new law's data collection provision has the gift card community gearing up for a legal challenge. The new law, which was closely watched by issuers of gift cards, provides a five-year abandonment period, a new "cash-back" provision, prohibition of post-purchase fees and expiration dates, disclosure requirements and the collection of ZIP codes from purchasers. Some parts of the new law will go into force as early as September 1, 2012.
Click here to read the client alert, which summarizes the provisions of SB1928.
What is the FTC "Up To?"
On June 29, the Federal Trade Commission (FTC) released the results of a recent mall intercept survey it conducted in connection with an investigation into several window manufacturers' "up to 47 percent" energy savings claims. The resulting settlement, which was announced in February 2012, required that the companies not make such "up to" claims unless "all or almost all" consumers are likely to achieve the maximum savings.
In a recent post to Venable's advertising law blog, www.allaboutadvertisinglaw.com, Venable partners Leonard L. Gordon, Amy Ralph Mudge and Randal M. Shaheen write that although the FTC stated in its analysis of the proposed settlement that "the FTC's complaint and the proposed consent order should not be interpreted as a general statement of how the Commission may interpret or take other action concerning representations including the words 'up to' for other products or services in the future," the FTC may be rethinking that position.
The FTC's press release on the survey stated it "believes the report will help guide advertisers to avoid the use of misleading â€Üup to' claims. It reinforces the FTC's view that advertisers using these claims should be able to substantiate that consumers are likely to achieve the maximum results promised under normal circumstances." In other words, Gordon, Mudge and Shaheen write, maybe the FTC's consent order against the window manufacturers actually was intended to be a general statement regarding "up to" claims for other products and services.
Click here to read the complete post on www.allaboutadvertisinglaw.com.
Click here to read the FTC's press release and access a copy of the report.
Change to CBP Policy Could Make Post-Import Pricing Adjustments Easier
A large percentage of imports into the United States involve trade between related parties. In fact, related-party trade accounted for over 40 percent ($1,295 billion) of the total goods imported into the United States during 2010. For tax purposes, U.S companies typically implement formal intercompany transfer pricing policies to ensure that the relationship of the parties does not affect the price of intercompany sales. To replicate the price of an arm's-length transaction, these transfer policies often provide for various post-import adjustments to the transfer price.
Venable attorneys Lindsay B. Meyer, Carrie A. Kroll and Jana del-Cerro write in a recent client alert that it may become easier for some companies importing goods from related foreign parties to implement post-import pricing adjustments required under transfer pricing policies and advanced pricing agreements. This change is due to a May 30, 2012 ruling issued by U.S. Customs and Border Protection (CBP). The ruling, which represented a significant modification of CPB's long-standing approach to such transactions, goes into effect on July 30, 2012.
Click here to read the full alert.
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