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1 MEMA Brand Protection Council November 19, 2009 Detroit, MI.

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1 1 MEMA Brand Protection Council November 19, 2009 Detroit, MI

2 2 Agenda Welcome & Introductions – Andy Cifranic Review Antitrust Guidelines – Tony Lupo Legal / Litigation Update – Tony Lupo Government Affairs Update – Catherine Boland Operation Joint Venture – Michael Pearl, ICE Lunch Who’s Controlling Domain Name Space – Phil Lodico –ICANN – Internet Corporation Assigned Names & Numbers –CADNA – Coalition Against Name Abuse Legal Review: Advertising Pitfalls and Rules – Lupo Break – 15 minutes Working Session: BPC Mission and Purpose – Cifranic Council Business – Jack Cameron –Member Roundtable – Any open issues –2010 Council Structure and dues changes

3 3 MEMA Brand Protection Council “To support members’ global efforts to prevent, detect and prosecute intellectual property offenses against their products and brands”. “Provide the means for collective industry action against counterfeiting, sharing market intelligence and best practices, media and education campaigns and gaining increased enforcement by all relevant law enforcement agencies”.

4 4 Anti-Trust Guidelines

5 5 Legal / Litigation Update Tony Lupo – Arent Fox

6 Counterfeiting at AAPEX Summary of the Actions at 2009 AAPEX Number of IPR Complainants: 6 (compared to 9 in 2008) Number of Non-compliant Complaints: 10 (compared to 12 in 2008) Number of Total Complaints: 16 (compared to 21 in 2008) Nature of Violations: (includes multiple violations per complainant) Non-compliant product: 10 Patent Violations: 4 Trademark: 3 Generalized IP allegations, including trade dress and copyright: 2 Resolution of Complaints: Insufficient evidence to pursue, or complaint withdrawn or deferred: 4 Products seized and/or booth shut down: 2 Delivered Letter or Warning to Booth: 3

7 Counterfeiting at AAPEX Summary of AAPEX IPR from Number of Total IPR Complainants: 2004 – – – * - 32 (10 IPR+ 22 NC) 2008* – 21 (9 IPR + 12 NC) 2009* – 16 (6 IPR + 10 NC) * Includes Non-compliant Products

8 8 Government Affairs Update Brand Protection Council November 19, 2009 Catherine Boland Director, Government Relations Motor and Equipment Manufacturers Association

9 9 MEMA Washington, D.C. Office Six person office that develops legislative and regulatory strategies on issues impacting automotive and heavy duty suppliers Resource for OESA, AASA, HDMA members Government Affairs Committee that sets legislative priorities based on input from market segments

10 10 Implementing the PRO-IP bill Fiscal Year 2010 Commerce, Justice, State appropriations –House bill – passed House in June $8,000,000 for new agents to investigate intellectual property in addition to new agents in omnibus Additional $2,000,000 for U.S. Attorneys –Senate Bill – passed Senate in early November Urges the FBI to continue to make the detection, investigation and prosecution of domestic international intellectual property crimes an investigative priority –Currently in Conference. CACP, which MEMA is part of, has urged Conferees to support House language

11 11 Implementing the PRO-IP bill On September 29 th, President Obama nominated Victoria Espinel for the Intellectual Property Enforcement Coordinator, aka IP Czar –Espinel served as Asst. USTR for IP in Clinton Administration –This is a Senate-confirmed post. Senate Judiciary Committee held nomination hearing on November 4 th –Information on her nomination including questions submitted from Senate Judiciary Committee can be found here: sExecutiveNominations/IPEC-VictoriaEspinel.cfm sExecutiveNominations/IPEC-VictoriaEspinel.cfm –Espinel expected to be confirmed

12 12 Customs Facilitation and Trade Enforcement Reauthorization Senators Max Baucus (D-Mont.) and Chuck Grassley (R-Iowa) introduced S in early August MEMA Washington office participating in Chamber “boiler room” working group on legislation MEMA will remain active with the CACP to ensure that suppliers are protected in bill Finance Committee hearing held on October 16 th

13 13 Customs Facilitation and Trade Enforcement Reauthorization –Statutorily establishes CBP and ICE within DHS and requires each agency to prioritize its missions –Strengthens IPR enforcement by establishing, by statute, the National Intellectual Property Rights Coordination Center within ICE to coordinate federal efforts to prevent importation or exportation of goods that violate IPR

14 14 Customs Facilitation and Trade Enforcement Reauthorization S (cont.) –Strengthens IPR enforcement by strengthening CBP’s targeting efforts to detect goods that violate IPR and requires CBP to dedicate port personnel with a primary responsibility of enforcing IPR –Streamlines CBP recordation of copyrights and includes Sense of Congress that CBP and PTO should create a system where trademarks and copyrights issues by PTO should be recorded at CBP

15 15 Anti-Counterfeiting Trade Agreement In 2007, USTR announced that they had begun discussions with our trading partners to negotiate anti- counterfeiting trade agreement According to USTR, ACTA is “... intended to assist in the efforts of governments around the world to more effectively combat the proliferation of counterfeit and pirated goods, which undermines legitimate trade and the sustainable development of the world economy, and in some cases contributes to organized crime and exposes American families to dangerous fake products.” Discussions resumed this year after the change in administration and are expected to end in 2010

16 16 Anti-Counterfeiting Trade Agreement Discussions include Canada, the European Union (with its 27 Member States), Japan, Korea, Mexico, New Zealand, and Switzerland Discussions are conducted in secret and drafts are not made public, but summary has been released and can be found here: Summary highlights civil and criminal enforcement, border measures, IPR enforcement in a digital world, and international cooperation amongst other issues

17 17 Discussion For more information contact Catherine Boland Director, Government Relations or

18 18 Operation: Joint Venture Michael Pearl - ICE

19 19 Lunch

20 WHO'S CONTROLLING THE DOMAIN NAME SPACE AND WHAT THAT MEANS FOR BRANDS Phil Lodico, Managing Partner

21 21 Agenda  Level Set – Domain Names: Why are they important?  Exploitation on the Internet  What’s going on?  Who’s getting hurt?  How much does it cost?  ICANN- What it is and how it works  IANA  IPC, GNSO, BC, ALAC, etc.  Tomorrow’s Main Challenge for Businesses and Users  New gTLDs  IDNs  Internet Governance  The Big Picture  What’s ineffective?  Who’s working towards improvement?

22 22 Domain Names – ❚ Serve as an entry point for consumers  Domains are easy to remember labels of IP numbers translated into alphanumeric strings separated by dots ❚ Protect trademarks ❙ Domains reduce negative brand impressions by keeping intuitive domains out of the wrong hands ❚ Promote brands ❙ Domains capture traffic and make more positive impressions that can lead to new business 22

23 23 Consumer Behavior ❚ Internet Users Increasingly Practice Direct Navigation ❙ Direct Navigation (AKA type-in and direct search) describes the process whereby a user opens their browser and types a name that may or may not have been communicated to them via marketing or packaging in the address bar ❙ Category/Generic Traffic - helpful service when rerouted ❙ 401k.com - Fidelity ❙ Brand Traffic - disservice when rerouted ❙ Fidelity401k.com – infringement ❚ Omniture has found: ❙ 80% of Internet users navigate directly by typing a destination into the address bar (over 800 million Internet users) ❙ Direct Navigators convert (to leads, purchases, etc.) at nearly twice the rate of search engine users 23

24 24 The New Internet Landscape ❚ Over 1.1 billion Internet users ❚ Global online advertising is projected to grow to over $80B in 4 years ❚ Web 2.0 – user-generated content ❚ Mobile Web – the handheld is increasingly the primary browsing tool ❚ Need for enhanced “Findability” – how Internet users find and interact with content has changed dramatically ❙ Search Navigation – SEO and SEM helps sites capture traffic ❙ Direct Navigation – Internet users type a desired destination into the browser address bar to reach destinations whether they intend to leverage a search engine (e.g. Google.com) or “Freestyle” navigate (e.g. DHLTracking.com) to find more targeted information within Web sites ❚ Domain Name Infringement, which is defined as registering, trafficking in, or using a domain name with bad faith intent to profit from the goodwill of someone else’s trademark, is growing 24

25 25 Exploitation on the Internet: What’s Going On? Cybersquatting Techniques E-commerce is all about customer traffic Step 1 – Identification of target domains  Cybersquatters register domain names that brand owners fail to register so they can profit from visitor traffic in bad faith or resell these names.  - Typosquatting (myspac.com) - Combosquatting (disneyplyhouse.com) Step 2 – Traffic Monetization  Pay-Per-Click (PPC)  Affiliate fraud  Direct Sales fraud 25 Exploitation: Cybersquatters profit at the expense of honest users and brands

26 26 Exploitation on the Internet – What’s Going On? A Pay-Per-Click Site: mycokereward.com 26 Advertisers pay the host only when their ad is clicked

27 27 Exploitation on the Internet - What’s Going On? Cybersquatting Data Findings  Cybersquatting grows at a rate of 100% year after year  Most cybersquatting activity is committed by “small timers” and a few big offenders  An estimated 5% of cybersquatting is responsible for 95% of traffic hijacking  Less than 50% of cybersquatting sites receive meaningful traffic  Sites that garner meaningful traffic receive an average of 600 visitors/year  On average, a global corporation will face 5,000 infringements every year  25% of visitors click on the links posted on Pay-Per-Click (PPC) sites  Of those who click on PPC sites, an estimated 75% click on the link provided, which is paid for by the brand owner represented in the domain name  The average cost per click is $ Owning the rights names will counter diversion and financial loss

28 28 Exploitation on the Internet: Who’s Getting Hurt? Consumers, Business, Government & Nonprofits Consumers  Confusion and poor online experiences - a feeling of being “hijacked”  Exposure to malware and spyware  Risk of divulging private information to fraudulent sites  Risk of purchasing counterfeit medication and products Businesses  Billions of dollars in lost or misdirected revenue and extortion  Reputational damage  Increasing enforcement costs to recover domains containing owned trademarks Government and Nonprofit Organizations  Confusing or misleading government sites  Lost campaign donations due to phishing and fake charity sites 28 Exploitation persists because cybersquatters are not punished

29 29 Exploitation on the Internet - Who’s Getting Hurt ? Customers The content and links on a counterfeit site appear authentic Demo footer 29 PPC can lead to consumer confusion and harm from counterfeit medication

30 30 Exploitation on the Internet: Who’s Getting Hurt? Government Bodies 30 Users are confused, shocked or frustrated

31 31 Exploitation on the Internet: Who’s Getting Hurt? Nonprofit Organizations 31 Users are diverted and think sponsored links are credible

32 32 Exploitation on the Internet: How Much Does It Cost? Business Impact (1/2) Tangibles  Lost leads and sales for some trademarks exceed $1M per year per brand Example: homedpot.com  Value = Traffic x Conversion Rate x Avg. Order Size  $2,725,932/yr = 132K/yr x 10.7% x $193  Over $1,000,000/yr if half of users are diverted to competitors while half persevere and find the brand site  Online monitoring programs cost $40,000 per year, on average  Companies file an average of 10 UDRP complaints per year at an average cost of $6,000  Companies send an average of 150 cease and desist letters annually 32

33 33 Exploitation on the Internet: How Much Does It Cost? Business Impact (2/2) Intangibles  Lost goodwill and customer loyalty due to poor experiences  Brand dilution  Lost impressions Example: Mypsace.com  Value = Traffic x Impression  $300,000/yr = 3M x $ Combining tangible and intangible costs, brand owners worldwide lose over $1 billion each year

34 34 Take Aways ❚ Own the right names ❚ Use them as expected ❙ Pair auto information with auto names for example ❚ Ensure that domain considerations are an integral part of naming and branding 34

35 35 Tomorrow’s Challenges for Business and Users: More gTLDs and Internet Governance ICANN’s plans for new gTLDs  An unknown number of registrations are expected  Registries may be run by brands, cities, affinity groups or speculators Concerns  Financial costs  Dilution of the current space and brand strength  Unstable IT infrastructure  Global cybersecurity  More malicious abuse 35 It pays to be prepared- know the possible impacts of new gTLDs

36 36 What is ICANN? ❚ California based not-for-profit corporation ❚ Founded in 1998 to oversee the operation and assignment of names (domain names) and numbers (IP addresses) – previously managed by the US government ❚ Responsible for setting minimum standards and agreements with contracted parties (registrars and registries) ❚ ICANN’s authority to manage the operations of the DNS is derived from the IANA contract. The IANA contract, which provides ICANN with the technical capabilities to operate the DNS, was awarded to ICANN by the U.S. Department of Commerce. The contract is up for renewal in

37 37 ICANN Structure 37

38 38 Why is ICANN important? ❚ Domain Names are critical. They are online doorways. ❚ Many brand owners are beginning to more fully understand the impact that domain abuse and other issues in the current domain space have on their consumers and businesses ❚ Consumers look to the brands they trust as stewards of the Internet ❙ Threats need to be reduced or eliminated to create more safe and productive user experiences ❚ ICANN is the hub of all domain policy ❙ Registrars ❙ Standards & Compliance ❙ New TLDs ❙ Abuses: AGP (tasting), WHOIS, Fast Flux, Front Running, Cybersquatting 38

39 39 ICANN- Policy Development ICANN creates policy through “bottom-up” development process. ❙ Issues are raised and discussed within the supporting organizations within ICANN: ❙ Address Supporting Organization (ASO) ❙ Generic Names Supporting Organization (GNSO) ❙ Commercial & Business Constituency ❙ gTLD Registries ❙ Internet Service & Connection Providers ❙ Non-Commercial ❙ Registrars ❙ Intellectual Property Constituency ❙ Country Code Names Supporting Organization (ccNSO) ❙ Once a report has been produced, the document is made available for public comment. ❙ After several rounds of discussion amongst and between supporting organizations and the general public, viable policies or policy changes are brought before the Board of Directors for review. ❙ Policies and policy changes only become final when a compromise is reached between the different components within ICANN. 39

40 40 Issues with ICANN ❚ ICANN is a captured regulator ❚ ICANN is not independent ❚ ICANN is not transparent ❚ ICANN is more interested in making a profit than working for the benefit of Internet users ❚ ICANN is not accessible ❚ ICANN is failing to address numerous issues corrupting the Internet ❚ ICANN is not looking at itself critically ❚ ICANN is accountable only to itself. 40

41 41 Launch of New TLDs ICANN has proposed opening up the domain name space to a potentially unlimited number of top-level domains (TLDs) ❙ Generic TLDs: ❙.AUTO ❙ Brand-specific TLDs: ❙.FAIRWINDS ❙ Geographical TLDs: ❙.BERLIN ❙.NYC ❙ Community TLDs: ❙.ECO 41

42 42 New TLDs- Possible Rewards The introduction of the new TLDs may result in several rewarding benefits across three different areas for companies and brand owners: branding, market dominance, and security.  Branding:  A new TLD, such as a.COMPANY, could enable a company to tie all of its brands back to the company name and master brand.  Due to the high application and registration costs, a company would be limited to registering a select few dot-BRANDs and dot-KEYWORDs. This will encourage companies to agree on a corporate identity, thereby strengthening and unifying their core brands.  Market Dominance:  A few key dot-BRANDs and dot-KEYWORDs could provide a company with market dominance.  Security:  If a company were to choose to operate a TLD, it could control what domain names, if any, are allowed to exist in the name space. This would provide that company’s consumers with confidence that as long as they type in “anything”.COMPANY they will find the company they are looking for. 42

43 43 New TLDs- Possible Risks New TLDs pose risks to companies in four different categories: direct costs and lost sales as well as consumer confusion and search.  Usage: Based upon current Internet user behavior, it is not expected that new TLDs will receive direct navigation traffic unless marketed heavily.  Consumer Confusion: If millions of new TLD domain names are registered and companies begin marketing themselves under new monikers, Internet users will be hard-pressed to remember which company uses which TLD.  Cost: Securing a new TLD will cost roughly $500,000 in application fees and infrastructure setup.  Beyond securing a TLD such as.COMPANY, businesses may be forced to register key domain names in others’ new TLDs.  Third-party infringements will expand and the cost to recover harmful registrations will increase.  Search: The search engines have not released information on how they will adjust their search scoring when new TLDs are released and industry experts are concerned that if the search engines do take these TLDs into account, rankings will be impacted. 43

44 44 Costs ❚ One-time cost of roughly $200K to apply (if the TLD is not applied for by anyone else- otherwise, there will be auction fees and dispute resolution/review fees). ❚ $700k over ten years in ICANN fees. ❚ $200,000 for infrastructure setup. ❚ $50,000 annually for infrastructure. ❚ $200,000 for legal and consulting services for application process. Over the course of 10 years, fixed fees will exceed $1,500,

45 45 The Big Picture: What’s Ineffective? (1/2) Legislation  International Law - there is no international regulation that protects businesses or that awards damages to rectify actual harm.  US Law - The Anti-Cybersquatting Consumer Protection Act (ACPA) awards damages ranging from $1,000 - $100,000. ACPA is only effective against cybersquatters who own a large number of infringements of one brand. Arbitration  The UDRP process, which is overseen by approved dispute resolution providers NAF (USA) and WIPO (Switzerland), was introduced by ICANN. It provides only for the cancellation or transfer of a domain name. No damages are awarded. A cybersquatter can choose not to respond to a filed complaint and simply hand over the domain. 45 Only minimally effective legal and dispute deterrents currently exist

46 46 The Big Picture: What’s Ineffective? (2/2) Policy ICANN  A “bottom-up” policy development process claims to represent global multi-stakeholder interests, but is rife with conflicts of interest  Example: GNSO was restructured to heavily favor contracted parties  There are issues with transparency and accountability on the Internet, which makes it easy for cybersquatters to operate without being detected  Example: false Whois records U.S. Government  The Affirmation of Commitments (AOC) signed between ICANN and the U.S. Department of Commerce on September 30, 2009 addresses many of the concerns of the Internet community and establishes oversight of ICANN. However, one glaring omission from the AOC is any measure that binds ICANN to these commitments. 46 Conflicts of interests + lack of oversight at ICANN blur judgment and agenda

47 47 The Big Picture: Who’s Working Towards Improvement? Legislation  International Law - WIPO is interested in developing an international treaty  US Law - Updating ACPA to impose higher penalties  US Congress - Cyber Security Act 2009  US Executive Office - White House Cyber Security review Policy  ICANN review and reform would improve governance, transparency, and reduce cybersquatting 47

48 48 Questions Demo footer 48

49 Advertising Pitfalls and Rules: Legally Speaking Presented by Anthony V. Lupo Arent Fox LLP Washington, DC | New York, NY | Los Angeles, CA

50 Advertising Pitfalls and Rules: Legally Speaking 50 Overview (1)Who is Regulating? (2)Red Flag Statements (3)Advertising and “OEM” (4)Challenging Your Competitors

51 Advertising Pitfalls and Rules: Legally Speaking 51 Part 1: Who is Regulating?

52 Advertising Pitfalls and Rules: Legally Speaking 52 Who is Regulating?  Federal Trade Commission (“FTC”) enforces under Section 5 of the FTC Act.  Generally prohibits unfair or deceptive advertising  State Attorneys General regulate under state false advertising laws.  Most states have laws that are similar to the FTC Act.  National Advertising Division (“NAD”) evaluates challenges brought by competitors involving national advertising campaigns  Better Business Bureau evaluates local advertising campaigns.

53 Advertising Pitfalls and Rules: Legally Speaking 53 Fines and Penalties  FTC and State Attorneys General:  May impose a fine depending on the nature of the complaint  May require a removal of advertising from the marketplace  May impose an order requiring compliance for a period of time  NAD and BBB:  May require a removal of advertising from the marketplace  Will demand advertising be modified to meet the requirements of the Opinion  Non-compliance referred to the FTC

54 Advertising Pitfalls and Rules: Legally Speaking 54 Part 2: Red Flag Claims

55 Advertising Pitfalls and Rules: Legally Speaking 55 Red Flag Claims  Price Savings Claims  Warranty & Guarantee Claims  Fuel Efficiency Claims  “Free” Claims  “Green” Claims

56 Advertising Pitfalls and Rules: Legally Speaking 56 Price Savings Claim [See YouTube Video 0km3n4] 0km3n4

57 Advertising Pitfalls and Rules: Legally Speaking 57 “Free” Claims  If advertised as “free” customer must not be charged ANY fee for that service.  Consider a disclosure to explain what is meant by “Free”  Limitations and purchase requirements  Term for the offer

58 Advertising Pitfalls and Rules: Legally Speaking 58 Price Savings Claim  Must reflect the market share data on which they are based.  Must be kept current so that they accurately reflect the current market or provide expiration date  Best to limit the claim to a comparison with one or two competitors, rather than making a general statement that arguably applies to all competing products.  Make sure the claim is accurate in all markets that it is advertised.  Consider claims that are arguably “puffery”, i.e. EVERYDAY LOWER PRICES

59 Advertising Pitfalls and Rules: Legally Speaking 59 Price Savings Claim [See YouTube Video 0km3n4] 0km3n4

60 Advertising Pitfalls and Rules: Legally Speaking 60 Price Savings Claim [See YouTube Video 0km3n4] 0km3n4

61 Advertising Pitfalls and Rules: Legally Speaking 61 Fuel Efficiency Claims  Should be tested in real world conditions that show what a consumer can typically achieve  Performance must be capable of being achieved by an appreciable number of consumers  Include dollar per gallon cost basis in the main claim  Claim should accurately reflect testing conditions

62 Advertising Pitfalls and Rules: Legally Speaking 62 Questions?

63 Advertising Pitfalls and Rules: Legally Speaking 63 Fuel Efficiency Claims

64 Advertising Pitfalls and Rules: Legally Speaking 64

65 Advertising Pitfalls and Rules: Legally Speaking 65 Warranty and Guarantee Claims  Material limitations must be stated in close proximity to the claim  Could be referenced by an asterisk  Term of warranty  What is guaranteed?  Registration requirements  Always reference where a customer may find the full terms of the warranty

66 Advertising Pitfalls and Rules: Legally Speaking 66 “Free” Claims  Material limitations must be stated in close proximity to the claim  Could be referenced by an asterisk  Term of warranty  What is guaranteed?  Registration requirements  Always reference where a customer may find the full terms of the warranty

67 Advertising Pitfalls and Rules: Legally Speaking 67 “Free” Claims  If advertised as “free” customer must not be charged ANY fee for that service.  Consider a disclosure to explain what is meant by “Free”  Limitations and purchase requirements  Term for the offer  Include link or reference to where a customer may find more information

68 Advertising Pitfalls and Rules: Legally Speaking 68 Price Savings Claim  Must reflect the market share data on which they are based.  Must be kept current so that they accurately reflect the current market  Tips:  Best to limit the claim to a comparison with one or two competitors, rather than making a general statement that arguably applies to all competing products.  Make sure the claim is accurate in all markets that it is advertised.  Consider claims that are arguably “puffery”, i.e. EVERYDAY LOWER PRICES

69 Advertising Pitfalls and Rules: Legally Speaking 69 “Free” Claims  If advertised as “free” customer must not be charged ANY fee for that service.  Consider a disclosure to explain what is meant by “Free”  Limitations and purchase requirements  Term for the offer

70 Advertising Pitfalls and Rules: Legally Speaking 70 Green Claims  General Environmental Benefit Claims  i.e., “Cutting Harmful Emissions”  Evidence of accuracy – typically third party testing data  Specify what portion of the product supplies the benefit  “Biodegradable” Claims  Substantiated with competent and reliable scientific data that the entire product will break down and return to nature  Specify what portion of the product is biodegradable  Clarify the rate and extent of degradation

71 Advertising Pitfalls and Rules: Legally Speaking 71

72 Advertising Pitfalls and Rules: Legally Speaking 72

73 Advertising Pitfalls and Rules: Legally Speaking 73 Advertising Generally  Regulator will look at the claim within the entire context of the advertisement  Consider product photographs – this may change the nature of the claim  Consider other claims in the advertisement and how they impact the claim  Avoid making graphic exaggerations  Land Rover case  Comparisons  Make certain you are comparing like products

74 Advertising Pitfalls and Rules: Legally Speaking 74 Part 3: Advertising and OEM

75 Advertising Pitfalls and Rules: Legally Speaking 75

76 Advertising Pitfalls and Rules: Legally Speaking 76

77 Advertising Pitfalls and Rules: Legally Speaking 77

78 Advertising Pitfalls and Rules: Legally Speaking 78 Meets OEM Specification Claims  Argument that the claim is false or deceptive  What are the OEM Specs?  On the other hand, is this what is common in the industry?  Constitutes a Performance Claim  Need substantiation establishing the accuracy of the claim  Substantiation should give a reasonable basis for the claim  Testing by a third party is always best  Testing must be on conditions similar to the conditions that the product would be used.

79 Advertising Pitfalls and Rules: Legally Speaking 79

80 Advertising Pitfalls and Rules: Legally Speaking 80

81 Advertising Pitfalls and Rules: Legally Speaking 81

82 Advertising Pitfalls and Rules: Legally Speaking 82

83 Advertising Pitfalls and Rules: Legally Speaking 83

84 Advertising Pitfalls and Rules: Legally Speaking 84 “Designed” “Engineered” and “Tested”  What are the OEM Specifications?  Argument that these require a higher level of substantiation  Proof of the accuracy of the claim  “Tested” implies that the product has been tested more than one time  Testing by a third party?  Real world conditions?

85 Advertising Pitfalls and Rules: Legally Speaking 85 Creative Solutions….

86 Advertising Pitfalls and Rules: Legally Speaking 86 “Gates is the largest OE supplier in the world… … same proven form, fit and function.”

87 Advertising Pitfalls and Rules: Legally Speaking 87 “OE proven form, fit and function.”

88 Advertising Pitfalls and Rules: Legally Speaking 88 “… you can count on Timken’s OE experience”

89 Advertising Pitfalls and Rules: Legally Speaking 89 Part 4: Challenging Your Competitors

90 Advertising Pitfalls and Rules: Legally Speaking 90 Taking Action  Cease and Desist letter  Demand testing information  If ignored or refused, consider options:  NAD challenge  Lodging a complaint with a regulator  Filing suit in court

91 Advertising Pitfalls and Rules: Legally Speaking 91 Taking Action  NAD Action  Pros: quick, cost-effective, reasonable solution  Cons: Not as aggressive, may not be an option for local advertising  Lodging a Complaint with a Regulator  Pros: Not expensive and if they pay attention, it takes you out of the battlefield, may result in fines, recall of advertising and bad press for advertiser.  Cons: They may ignore your complaint.  Filing Suit  Pros: Aggressive, may result in a recall of advertisements, choose your state forum, likely result in negative publicity for the advertiser  Cons: Expensive and could take years, may have to show harm or damage

92 Advertising Pitfalls and Rules: Legally Speaking 92 Questions?

93 93 Break 15 minutes

94 94 MEMA Brand Protection Council Thank You to outgoing Co-Chairmen: –Andy Cifranic, Bendix Commercial Vehicle Systems LLC Served for two consecutive years and represented the council on key issues in Washington –Rick Kempski, Webb Wheel Products, Inc. Served the past year but has taken a new position as President of Triangle Suspension Systems and is leaving the council Thank You!

95 95 Council Business 2010 Format and Dues Structure Changes –45 Total BPC members (regular, alternate, staff, law enforcement) –Membership decline in 2009 from 26 to 19 paying companies / regular members Forced to reduce 2009 meetings from 4 to 3 –To Maintain and Grow Membership Reduce membership dues to $599 (previously $800) 3 Scheduled Meetings Face-to-Face Meeting in Detroit Virtual Meetings via Webinar Format –Seeking volunteer to serve as Chairman

96 96 Working Session BPC Mission and Purpose – Andy Cifranic “To support members’ global efforts to prevent, detect and prosecute intellectual property offenses against their products and brands”. “Provide the means for collective industry action against counterfeiting, sharing market intelligence and best practices, media and education campaigns and gaining increased enforcement by all relevant law enforcement agencies”.

97 97 BPC Roundtable Open Forum to Bring Up Any Subject on Your Mind –Speak or Pass

98 98 Thank You! Travel Safe!


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