United States: Advertising, Marketing & Branding

Most companies treat intellectual property enforcement as patents and trademarks. Some of the damage that hits the P&L has nothing to do with copying your product or name. Instead, it is what a competitor says about its product, or about yours.

The Federal Trade Commission has secured a settlement with an auto dealership group over allegations of deceptive pricing practices, including advertising vehicles thousands of dollars below actual purchase prices and using misleading prize promotions. The proposed order would require prominent disclosure of total vehicle prices and prohibit misrepresentations concerning pricing, financing, and promotional incentives.

A federal copyright case over a single Facebook photograph resulted in years of litigation despite a $200 damages award, demonstrating how routine image use in business marketing can create substantial legal and financial exposure. Understanding copyright compliance, licensing requirements, and proper image-sourcing procedures has become essential for businesses seeking to avoid costly infringement disputes.

California and New York have enacted laws requiring disclosure when AI-generated performers appear in advertisements, while SAG-AFTRA negotiated contract language limiting studios' use of synthetic actors. These developments mirror consent and disclosure frameworks that have governed telecommunications and privacy law for years, raising questions about whether opt-out regimes or upfront consent models provide more effective protection.

California has enacted a groundbreaking AI disclosure law requiring advertisers to clearly identify when synthetic performers appear in their marketing materials. The legislation, set to take effect in 2027, includes a private right of enforcement that could potentially open the door to class action litigation against brands using AI-generated performers without proper disclosure.

Washington has recently seen an influx of class actions premised on alleged violations of the state’s Commercial Electronic Mail Act (CEMA). The ubiquity of email marketing campaigns has dragged the statute out of obscurity and propelled it to popularity with the plaintiffs’ bar.

Arnold & Porter's Consumer Products & Retail Industry Group presents a webinar exploring how companies can navigate the complex intersection of AI-driven marketing features and influencer partnerships. The session addresses critical risk management strategies for modern consumer marketing, from claim substantiation to third-party content oversight. Attendees will gain actionable insights on balancing compelling brand narratives with regulatory compliance in today's fast-paced digital landscape.

Buc-ee's aggressive trademark enforcement against a small Ohio convenience store has sparked national backlash, raising critical questions about when protecting legal rights begins damaging brand reputation. The case illustrates how enforcement actions can amplify the very threats they aim to suppress, transforming obscure defendants into sympathetic underdogs while generating boycotts, political criticism, and reputational harm that may exceed the original business risk.

New Balance has filed a trade mark infringement lawsuit against Decathlon over a logo used on KIPRUN running shoes, claiming the mirrored device creates confusion with its iconic N mark. The dispute raises critical questions about how consumers perceive brand identifiers in real-world contexts, particularly when logos appear differently depending on viewing angle and product placement.