Advertising, Marketing & Promotions

Our firm has a long history of involvement in the marketing and advertising field. We combine an experienced industry-focused team with strong practices in communications, entertainment, technology, privacy and intellectual property to advise our clients on the full range of legal issues relating to their marketing and advertising activities.

Davis Wright Tremaine represents a broad spectrum of clients in this area, including Fortune 100 companies in a variety of industries, multinational advertising agencies, most of the leading media and entertainment companies, operators of blogs and websites, and digital marketing agencies and production companies. Our attorneys are active participants in industry groups and speak regularly at conferences, seminars and other events hosted by organizations such as the Promotion Marketing Association, Digital Media Wire, the Media Law Resource Center, Promax|BDA, and the National Advertising Division of the Council of Better Business Bureaus. In addition, one of our attorneys co-authored the leading guide to advertising and commercial speech, and we have filed amicus briefs in every significant First Amendment commercial speech case before the U.S. Supreme Court over almost three decades, in addition to participating in many important cases in lower courts. We also represent the Association of National Advertisers, the American Association of Advertising Agencies, and the American Advertising Federation in matters concerning commercial speech.

We collaborate closely with our clients to provide thoughtful strategies, quick answers to pressing questions, creative transactions and vigorous defense of our clients’ rights when challenged by regulators or competitors. Services include:

Advertising

• Negotiating and drafting agency-client agreements
• Reviewing advertising and promotional materials (including television and radio commercials, banner ads, web video and other online materials, e-mail messages and print advertisements) at all stages of production  
• Advising clients concerning claim substantiation, including design and review of consumer research and testing procedures and results
• Obtaining licenses to use music, photographs and other copyrighted works
• Clearing brand names, logos and other trademarks
• Assisting clients in clearing commercials with the major television networks
• Counseling clients with respect to guild and union issues, including inquiries and audits by the Screen Actors Guild
• Assisting clients in compliance with laws relating to regulated industries and products, such as financial and alcohol, and on sales practices such as "free" offers and the use of gift cards and coupon

Internet, mobile and emerging media and technologies

• Advising on the use of social media, mobile devices and other new media and technologies, including compliance with guidelines issued by the Mobile Marketing Association and by providers of social media platforms
• Auditing websites and mobile apps to ensure compliance with applicable federal and state laws and regulations, including the Telephone Consumer Protection Act
• Providing strategies to address legal and industry self-regulatory matters concerning online behavioral advertising practices
• Advising advertisers and web publishers on legal issues relating to user-generated content, including the application of the Digital Millennium Copyright Act and Communications Decency Act safe harbors.
• Counseling clients on the application of the FTC’s endorsement guides to blogs and other online initiatives
• Drafting and negotiating  software license agreements, online media purchase and insertion orders, agreements with online ad networks, website and app development agreements, agreements with e-mail marketing providers and agreements with various technology suppliers

Contests, sweepstakes, games and other promotions

• Drafting rules, releases and disclosures and advising on state registration and bonding issues
• Advising on compliance with anti-lottery and gambling laws and with promotion-related guidelines of social media outlets and other platforms
• Counseling regarding issues relating to user-generated content
• Reviewing promotions-related ad copy and in-store materials
• Negotiating and drafting co-promotion agreements and agreements with prize suppliers, promotion agencies and fulfillment houses
• Advising regarding consumer loyalty and incentive programs
• Providing advice regarding charitable promotions

Branded entertainment

• Negotiating celebrity endorsement agreements
• Negotiating agreements relating to product placements, brand integrations and sponsorship of concert tours, television programs and other entertainment events and properties
• Structuring deals relating to advertiser-funded entertainment properties and initiatives, including the production and distribution of branded content
• Assisting with clearances and licensing arrangements with respect to the use of music across all platforms

Direct marketing/telemarketing

• Advising clients on federal and state spam, junk fax, wireless marketing and telemarketing laws
• Representing clients in rulemaking proceedings and challenges regarding direct marketing regulations
• Counseling magazine publishers regarding direct mail solicitations, including with respect to sweepstakes and promotions and continuous service/negative option considerations as well as generally with respect to direct-to-consumer issues (including email, fax and telephone solicitation)

Disputes and regulatory proceedings

• Litigating claims of false advertising, copyright and trademark infringement, defamation, invasion of privacy and related matters
• Representing advertisers and agencies in proceedings before the major television networks and self-regulatory bodies such as the National Advertising Division of the Council of Better Business Bureaus and the Children’s Advertising Review Unit
• Defending advertisers against claims by the Federal Trade Commission and state attorneys general

Privacy

• Counseling clients about their online and offline privacy obligations under a variety of laws, including the Children’s Online Privacy Protection Act (COPPA), the CAN SPAM Act, the Communications Assistance for Law Enforcement Act (CALEA), the Gramm-Leach-Bliley Act, the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the European Union Privacy Directive and related "Safe Harbor" and state privacy laws
• Preparation of privacy policies
• Advising on the sale of customer lists and the transfer of data to vendors
• Developing strategies to resolve data security breaches
• Advising on issues relating to the collection of personal information from minors