Kathyleen is a partner in the Advertising, Technology and Media and the Intellectual Property Groups. She represents consumer products, media, and entertainment companies in federal and state litigation and enforcement actions, including actions involving false claims advertising, right of privacy and publicity, trademark and copyright infringement actions, consumer class actions involving unfair and deceptive advertising and trade practice claims. She also regularly counsels clients on clearance, branding, advertising and marketing issues, oversees an active trademark and copyright prosecution practice, and conducts compliance programs and employee training in these areas.
Kathyleen has tried cases in both state and federal court. She routinely handles arbitrations, mediations and investigations, and enforcement proceedings, including proceedings before the Federal Trade Commission and the National Advertising Division of the Council of Better Business Bureaus, Inc.
She has lectured and written widely on recent developments in trademark, advertising and class action law. She has served as a speaker at the WLALA's "Class Action Forum," at the American Conference Institute's Conference on "Advertising Law in the Electronic Age" and at the International Trademark Association's "Trademark Dilution Forum" and "False Advertising Forum." She also chaired roundtables on "Comparative Advertising" and "Trademark Infringement Claims in the Fashion Industry" for the International Trademark Association. Her articles on topics ranging from Federal Trade Commission advertising enforcement to avoiding the pitfalls of "green" marketing have appeared in various publications, including the Los Angeles Business Journal, Industry Week, and Apparel Industry Magazine.
Successfully defended major fast food chain in right of privacy and publicity lawsuit brought by musician based on artwork used on "Big and Tasty" packaging.
Successfully defended a major entertainment company and its home video division in a purported class action against four major studios, alleging false advertising in connection with alleged use of closed caption symbol on DVDs in which the bonus material is not closed-captioned, resulting in a favorable settlement for defendants.
Successfully defended a major entertainment company and its home entertainment distributor in a false advertising class action challenging defendants' labeling of DVDs intended for retail sale as "for sale only," resulting in the denial of plaintiff's request for a TRO and preliminary injunction and the granting of defendants' motion to dismiss.
Represented popular fashion retailer in a series of federal trademark infringement action against sellers of counterfeit product clothing resulting in substantial monetary payments and stipulated permanent injunctions for the client.
Represented popular fashion retailer in a series of federal trademark infringement action against sellers of counterfeit product clothing resulting in substantial monetary payments and stipulated permanent injunctions for the client.
Successfully defended a major entertainment company and its home entertainment distributor in a false advertising class action challenging defendants' labelling of DVDs intended for retail sale as "for sale only," resulting in the denial of plaintiff's request for a TRO and preliminary injunction and the granting of defendants' motion to dismiss.
Successfully defended a major entertainment company and its home entertainment distributor in a false advertising class action challenging defendants' labelling of DVDs intended for retail sale as "for sale only," resulting in the denial of plaintiff's request for a TRO and preliminary injunction and the granting of defendants' motion to dismiss.
Successfully defended class action against mass retailer with respect to labeling of goods resulting in favorable settlement for defendants.
Represented the world's largest winery in federal trade dress infringement, false advertising, and unfair competition action against competing brandy producer for advertising and sale of "look-alike" product, resulting in a substantial monetary payment and stipulated permanent injunction for the client.
Represented the world's largest winery in a federal trademark infringement and dilution action against an Italian supplier of table wines, resulting in a favorable settlement for the client and two separate sanction awards, including the entry of evidentiary preclusion sanctions, against the defendant and its counsel.
Represented major battery manufacturer in federal false advertising and unfair competition action against suppliers of Ab Energizer exercise belt, resulting in substantial monetary payment, stipulated judgment, cancellation of trademark registrations, and stipulated permanent injunction for the client.
Successfully defended eight major retailers, including Macy's, Dayton Hudson, Federated Department Stores, and Victoria's Secret, in federal copyright infringement and unfair competition action brought by manufacturer of women's designer accessories to stop retailers' sale of competitor's purported "look-alike" product.
Represented the publisher of "Golf Magazine" in federal trademark infringement, false advertising, and unfair competition action against competing publication, resulting in changes to competitor's mark and logo.
Kathyleen regularly counsels clients in the following areas:
Advertising Clearance and Compliance Review
Kathyleen assists clients in handling the significant issues that arise in clearing copy for print, television, radio, and Internet advertising, infomercials, direct mail, and interactive media, including the following:
- Clearance of third-party rights, including rights of privacy and publicity, copyrights in text, music, art, photographs, graphics and design; trademark and trade dress rights in words, logos, slogans, and colors
- Use of consumer, celebrity, and expert testimonials and endorsements to make product claims
- Claim substantiation issues, including use of clinical studies and tests to support product claims
- Use of comparative advertising
- Use of pricing and savings claims, including comparative pricing, "switch and save" claims, "sale" pricing, "free" offers, and "no sales tax" promotions
- Use of "guarantees"
- Use of "Made in U.S.A." claims
- Use of "green" claims
- Compliance with the Fair Packaging and Labeling Act
- Text of warranties, warnings, and disclaimers
- Advertising food and beverages, including alcoholic beverages
Negotiation of Talent Agreements
Kathyleen assists advertisers in negotiating talent agreements with celebrities who appear in advertising or endorse products or services.
Sweepstakes, Contests, Games, and Promotions
Kathyleen guides clients through the myriad state and federal laws that govern sweepstakes, contests, games, and promotions, including the following:
- Structuring online sweepstakes, contests, and promotions directed at children to meet the requirements of the Children's OnLine Privacy Act and CARU guidelines
- Structuring sweepstakes and contests to meet state and federal requirements and to minimize risk
- Drafting sweepstakes and contest rules and related promotional copy, affidavits of eligibility and privacy, publicity, and liability releases
- Drafting agreements related to joint promotions between suppliers of complimentary products or services
- Structuring exclusive promotions
- Handling state bonding, registration, and notification requirements
- Handling fulfillment issues and drafting related agreements with fulfillment houses
Consumer Issues
Kathyleen frequently counsels clients on the following issues:
- Gift cards, rebates and premiums, including California statutes regulating gift cards in the context of both compliance and litigation, including expiration dates, maintenance fees and redemption issues
- Handling consumer complaints related to products, services, labels, advertising and promotions
- Product recalls
Social Media, User Generated Content and Viral and Guerrilla Marketing
Kathyleen counsels clients on a wide variety of promotions that involve new and innovative marketing techniques including the use of social media, user generated content and viral and guerrilla marketing.
Direct Mail, Telemarketing, and Email Marketing
Kathyleen reviews promotional copy directed at consumers and helps clients engaged in direct-to-consumer marketing, including telemarketing, direct mail and e-mail campaigns, to comply with applicable federal and state laws.
Mobile Text and Video Marketing
Kathyleen regularly counsels clients on wireless promotions, including best practices, consent, and fulfillment issues and structuring promotions to strengthen arguments that there is no consideration.
Children's Advertising
Kathyleen has extensive experience in navigating the regulations and guidelines relating to children's advertising, including CARU's Guidelines for Children's Advertising. She regularly advises clients with respect to the content of advertising directed at children, including product presentation, product labeling, product claims, and safety issues. She oversees sweepstakes and contests directed at children and structures online promotions to comply with the Children's Online Privacy Protection Act (COPPA) and other regulatory requirements. She also counsels on privacy and safety issues related to Web sites and online kids' clubs.