Technology and Digital Media Lawyer & Attorney : Davis Wright Tremaine Law Firm : Ecommerce, Outsourcing, Web 2.0

Two leading advocacy groups filed a complaint today with the Federal Trade Commission in an attempt to force the FTC to take a "proactive stance."  Joining the Center for Digital Democracy in the complaint is the U.S. Public Interest Research Group. Those groups currently are pursuing an FTC complaint about behavioral targeting generally. They argue that marketers should not track people's Web-surfing activity for the purpose of compiling profiles about them without first obtaining their consent.  The Federal Communications Commission already prohibits marketers from sending text message ads to consumers without their opt-in consent, but some other types of nascent mobile ads--such as wireless application protocol banners or search ads--are not similarly restricted.  the Center for Digital Democracy hopes to influence policy now, while the mobile ad market is still in its infancy. Specifically, its complaint calls on the FTC to create a task force that will include consumer representatives and industry leaders to craft a marketing regime that gives priority to privacy.  Although, to me, this is just an empty gesture to get attention, it reinforces once again the nervousness regarding behavioral advertising. 

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The EU Working Party responsible for implementing Europe's Data Protection Directive, i.e. the infamous European privacy laws issued an opinion this month found that the EU privacy directive covers a broad range of garden variety search engine activities, e.g. long term caching (a la the Internet Archive), search histories (like the material subpoenaed by the US government at the end of 2007), and collection of IP addresses.  The Working Party also noted that behavioral advertising may not be permissible without users' consent. 

This could hamstring the next generation interactive advertising and, even some garden variety website activities.  One more reason to use care if you're a US company moving into another jurisdiction.

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A few years ago, American Express starting running the "My Life. My Card." campaign, featuring  De Niro, Tiger Woods and (my personal favorite) Wes Anderson. But who came up with the slogan? Stephen Goetz said he did. Goetz, a consultant for Mez Design at the time, sent Amex a proposal:

"`My Life, My Card' American Express delivers personalized cards to its cardholders!"

Goetz's idea, according to AP, was to "enable credit card customers to personalize a card by choosing a picture to be printed on the card's face." Amex went ahead with its own "My Life. My Card." campaign and sought a declaratory judgment that it wasn't trampling on any of Goetz's rights. Goetz counterclaimed for misappropriation and TM infringement. Goetz lost and appealed.

On Monday, the 2nd U.S. Circuit Court of Appeals found for Amex. Why?  According to the court,

"Goetz employed the slogan `My Life, My Card' to generate interest among potential licensee credit card companies and not to differentiate the origin of his goods or services."

The appeals court said the slogan served as "a mere advertisement for itself as a hypothetical commodity."

"There can be no trademark absent goods sold and no service mark without services rendered," the court added.

The entire story is here.

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Chris Anderson gives a nice summary of revenue models for free content:

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