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David Ervin is a partner in the firm's Washington, D.C. office and a member of the Advertising & Product Risk Management (APRM) and Intellectual Property groups. He focuses on the intersection of advertising and intellectual property law.

Gavel 2

On May 4, 2016, Crowell & Moring LLP will host a complimentary seminar on Advertising for Associations in their Washington, DC office. This afternoon program will focus on key issues affecting advertising communications and public relations strategies of major trade associations. It brings together leading trade association executives and lawyers, public relations specialists, and ad agency creatives to discuss the laws, strategies, rewards and risks of association-sponsored ad campaigns. It will also discuss how associations can bring, or defend against, advertising-related litigation. The interactive seminar will be followed by an opportunity to network with colleagues in the association and legal communities.

Click here to learn more or to register for this event.

Danielle Air Jordans

Michael Jordan has settled two high-profile right of publicity lawsuits with two now-defunct grocery chains – Jewel Food Stores and Dominick’s Finer Foods.  In August, a jury awarded Jordan $8.9 million after a federal judge determined that Dominick’s violated Jordan’s rights under the Illinois Right of Publicity Act.  Jewel and Jordan were scheduled to start their trial in December.

Both grocers placed ads in a commemorative issue of Sports Illustrated honoring Jordan’s induction into the Basketball Hall of Fame.  Jewel’s full page ad “salute[d] #23 on his many accomplishments” and  “honor[ed] a fellow Chicagoan who was ‘just around the corner’ for so many years,”  playing off of the chain’s slogan that it was “just around the corner.”  Dominick’s touted Jordan as “a cut above” and featured a coupon for steak.

According to Jordan, he would “absolutely not” have allowed the grocers to use his name and identity in an ad.   Jordan, who testified that he “doesn’t do single ads” and does not do any deal for less than $10 million in the Dominick’s trial, claimed that the two grocers used his likeness for commercial gain without his permission.

The settlement serves as a cautionary tale for brands that might use a celebrity likeness without permission.

Image Courtesy of Flickr by David Woo

Danielle Kim K Image

On Friday the U.S. Food and Drug Administration (FDA) sent a warning letter to Duchesnay, manufacturer of DICLEGIS, a morning sickness drug, based on a social media post by ubiquitous social media user, Kim Kardashian. Kardashian posted a picture of herself with the drug while touting its safety and efficacy. However, Kardashian failed to mention risk information and other material facts about the drug. FDA found this false and misleading.

To respond to this incident, FDA has asked Duchesnay to, among other things, send out corrective messaging through the “same media” and with “the same frequency” as the violating material. Thus, perhaps an “FDA Approved” selfie will be hitting Instagram soon.

Drug companies seeking to use social media to promote their products should bear in mind that endorsers must spell out material risks and information in posts, not in separate links. Companies should use approved produced labeling in all forms of advertising, as FDA applies the same rules across all mediums. And, as the Kardashian episode illustrates, FDA is ready and willing to enforce violations.

Image courtesy of Flickr by Eva Rinaldi.