New White Paper: Is 2011 the "Year of the Mobile Privacy Lawsuit?"

My new white paper discusses recent litigation in the Mobile Privacy area and steps to reduce the risk associated with a mobile marketing campaign.

If you're interested, check it out at the Remodista/Bricks +Mobile website.  http://tinyurl.com/4e9vcwz

The 10 Legal Mistakes That Can Destroy A Mobile Marketing Campaign and How to Avoid Them

I'm proud to be a guest blogger at Tim Cascio's Mobile Marketing, Monetization and Methods blog. Tim's blog is a great resource for mobile marketers. He also co-chairs the dynamic Mobile Visionary Roundtable at the Illinois Technology Association. Here's the link. Hope you enjoy it.

http://timcascio.wordpress.com/2010/02/08/the-10-legal-mistakes-that-can-destroy-a-mobile-marketing-campaign-and-how-to-avoid-them/

Does the First Amendment trump the Right of Publicity in Advertising? - Part 2 and 3

Last year, American Apparel used the First Amendment as a defense in Woody Allen's suit against the company for the unauthorized use of his image in an ad campaign. The case settled on the eve of the trial with Woody Allen receiving $5 million.

Now, PETA has publicly stated that the First Amendment protects its right to use Michelle Obama's image without the First Lady's permission in a recent ad advocating a "Fur Free" livestyle.

Finally, Weatherproof agreed to remove its ads containing a picture of President Obama from its billboards after speaking to White House representatives who voiced displeasure at the use of his image in an ad. WSJ's Law Blog comments that it would have made an interesting case if Weatherproof didn't relent and the Obama White House had decided to file a law suit.

I wonder what the FTC position on the ads given its new guidelines regarding endorsements and testimonials? Are the advertisers misleading consumers when they use celebrities images without permission? Are the ads deceptive?

The New Pepsi Challenge: Gatorade v. Powerade

PepsiCo, Inc. sued Coca-Cola Co. over Coke's ad campaign touting the superiority of Powerade over Gatorade. Pepsi is claiming that Coke's ads are deceptive. Coke states that its sports drink is superior and Gatorade is "incomplete" because Powerade ION4 contains calcium and magnesium. According to Pepsi, that the amount of the minerals in Powerade ION4 is less than 0.5 percent of their recommended daily allowance and that most tap water contains more minerals.

It reminds me of when the FTC challenged an advertisement by Nestle that claimed Carnation Instant Breakfast has as much mineral nourishment as two slices of bacon. The problem? Bacon has no minerals.

The FTC encourages advertisers to run comparative ads - they're viewed as beneficial to consumers so long as they don't mislead. Coke's statement that Gatorade is incomplete without an insignificant amount of calcium and magnesium isn't a comparative ad - it is a claim and ad claims must be substantiated. Coke will have a tough time substantiating a claim that Gatorade is incomplete without an insignificant amount of minerals.

It looks like Coke might just lose the Pepsi challenge again.

A Real Taste of Chicago Fashion - April 2nd

Superbowl No Chicken Dance for the Patriots

It's nice to have a Superbowl where the game is SO much better than the ads. How many times have you spent the Monday after the game discussing the ads and not the game with your colleagues at work? Not this year. What a game!

I'm not a big football fan, nor did I have a preference for either New England or Giants going into the game. But, I couldn't help cheering for the underdog Giants as they came from behind in the 4th quarter. Now that's good football.

On to the Chicken Dance. As you may have read, KFC challenged any scoring player or Tom Petty to do the Chicken Dance during the game. If they completed a 3 second dance, KFC would donate $260,000 to charity. NFL spokesman Brian McCarthy called it a case of "ambush marketing 101" and warned that any players participating could face stiff fines.

Chicken Dance winners and losers?

NFL is a big loser for even commenting on KFC's "ambush marketing". Why dignify the challenge with a response? Comment board traffic was overwhelmingly negative towards the NFL with one poster renaming it the "No Fun League".

KFC was a slight winner. They managed to jump on the Superbowl marketing machine without spending more than the cost of a press release distribution. They'd be a big winner if they had figured out a way not to seem so crass and opportunistic.

The players and Tom Petty were winners. Of course, neither the players nor Tom Petty Chicken Danced during the game. With the quality of the performances all around, they focused on winning the game rather than KFC or any of the other Superbowl hype. True professionals.

What a game! (Did I say that already?)

Fear and Loathing in Boston

The saga continues on the Turner Broadcasting/Cartoon Network guerrilla marketing campaign. In textbook PR fashion, Turner Broadcasting quickly apologized and offered full restitution to the city of Boston. Turner also took out full page ads in Boston newspapers apologizing. From what I can tell, the media is treating them kindly for their efforts.

On the other hand, Sean Stevens and Peter Berdovsky, who were charged with placing a hoax device that causes panic, told reporters they would answer questions only about hair in the '70's. The media did not understand why the two would not answer their questions and used terms like "odd rant" and "nonsensical discussion" to describe what happened.

The charge of "placing a hoax device that causes panic", which carries a maximum penalty of five years in jail, requires the prosecutor to prove that the two men had a reasonable expectation that the devices would cause a panic when placed. The judge at the arraignment seemed skeptical that their intent was anything other than advertising.

The media was bewildered by their statements, but I say brilliant. No perp walk for these guys. If they dodged questions and left the building with hoods over their heads, they would look like criminals in the best case and terrorists in the worst case. They faced the press and, according to their defense attorney, performed. They are graffiti/performance artists who by their very nature have chosen an anti-establishment lifestyle. The press conference showed that 1) they were performers, not terrorists causing panic, and 2) only the establishment feared their actions.

After the press conference, young Bostonians couldn't wait to condemn the actions of the police. One young person called the police reaction "silly and insane" and said that Boston was "the laughing stock" of the country.

Those young and in the know are laughing at the older generation. Sounds a bit like the '60s, doesn't it?

From a PR perspective, the big loser is Interference Inc., the guerrilla marketing agency who couldn't be reached for comment. According to reports, their offices are closed and the CEO can't be located. Also, CNN reported that an employee from the company called one of the graffitti artists right after the panic started and told him to keep quiet. A textbook example of what not to do in a PR crisis. Any guesses on whether their offices will ever reopen?

Fearing the Flu & Cartoon Bombs

It was an interesting day in the news.

Fearing the Flu. The Centers for Disease Control and Prevention are set to release 108 pages of guidelines for states to follow in the event of a flu pandemic. Though no one from the Centers are officially talking about the document before it's released, several commentators have said that it calls for a staged response to a flu pandemic. All stages include some type of voluntary quarantine of the families members of people who are infected.

When I heard the report this morning, I started down that long, dark tunnel of analysis that my husband claims all lawyers enter when confronted with a legal question. What kind of legal issues would a flu pandemic present for my business clients?

Here are some issues that I thought of -

When can employees return to work after a voluntary quarantine?
What if an employee who is under a voluntary quarantine comes to work?
Is an employee under a voluntary quarantine on vacation, sick or unpaid leave?
What if the school of an employee's child is closed and the employee can't attend work?
What if some employees can work from home and other's cannot?
If a supplier defaults on a contract, is a flu pandemic a force majeure (act of God)?

I'm sure there are many more. If you think of any, post a comment.

Cartoon Bombs. In what will go down as the biggest snafu in guerrilla marketing history, the Cartoon Network placed "guerrilla graffiti light installations" in public locations in Boston. Police responded by shutting down Interstate 93 and several other roads, closing two bridges between Boston and Cambridge and halting boat traffic on the Charles River. At least one of the installations was detonated by the bomb squad.

The devices were placed in the public locations by Interference, Inc. a guerrilla marketing agency who describes itself as a "nationwide guerrilla and alternative marketing agency from idiation through tactile implementation and staffing."

Turner Broadcasting's PR machine quickly issued a statement apologizing and that they notified officials of all locations of the devices as soon as they were aware that there was a problem. Interference, Inc., a much smaller company, did not comment. Its website is not operational and the CEO, Sam Ewen, could not be located.

Back in 2001, Sam Ewen was interviewed by atnewyork.com. In response to a question on the effectiveness of guerrilla marketing, he said:

"There are quite a few ways to tell if a campaign is working or not. If there is a promotion involved, you can use a promotion code, a unique URL or a special 800 number to track actual responses. Or, you can look at actual sales during the time of the campaign. If it's more like a brand building campaign, you look at general traffic at a site or store. The neat thing about guerrilla marketing is that the media can buy into it and the campaign becomes the story."

Well, this campaign certainly became a story and the media coverage was huge. Something tells me that the result will not be a large number of Bostonians tuning in to Aqua Teen Hunger Force on Cartoon Network. More likely, they'll be tuning into Court TV to see the results. According to Boston Mayor Thomas Menino, the city is prepared to take civil or criminal action against those responsible. "This is a heavy penalty, imprisonment, two to five years for each one of them," he said. "When it comes to public safety, we are throwing everything at them."

Next time Cartoon Network and Interference Inc. are "idiating" a guerrilla marketing campaign, they might want to check in with their lawyers first.