USA Law and Practice Contributed by: Katelyn Patton, Frankfurt Kurnit Klein & Selz
3.3 Dark Patterns In 2022, the FTC issued a report, “Bringing Dark Patterns to Light”, which warns advertisers against engaging in online design practices that that trick or manipulate consumers into making choices they would not otherwise have made or that would cause them harm. In the report, the FTC identified four key types of dark patterns: • design elements that induce false beliefs (eg, by making false claims or using deceptive formats); • design elements that hide or delay disclosure of material information (eg, by hiding key information in terms and conditions or engaging in drip pric - ing); • design elements that lead to unauthorised charges (eg, by charging a consumer after a free trial period without the consumer’s authorisation or by making it difficult for a consumer to cancel a subscription); and • design elements that obscure or subvert privacy choices (eg, by not allowing consumers to defini - tively reject data collection or use). Some recent enforcement actions by both federal and state regulators have included allegations that market - ers have engaged in dark patterns. 3.4 Sponsor Identification and Branded Content The general rule is that consumers have the right to know when they are being advertised to. Several years ago, the FTC issued an “Enforcement Policy Statement on Deceptively Formatted Adver - tisements”, which provides detailed guidance about the use of branded content. The FTC and other regu - lators have also brought enforcement actions when marketers have misled consumers about the source of content or about whether the content they are viewing is advertising. The FCC also has sponsor identification requirements for broadcast advertising and certain other media subject to FCC jurisdiction.
3.5 Special Rules for Native Advertising When engaging in native advertising, marketers are generally expected to clearly and conspicuously iden - tify the content as advertising. The FTC’s “Enforce - ment Policy Statement on Deceptively Formatted Advertisements” provides detailed guidance about the use of native advertising.
4. Comparative Advertising and Ambush Marketing 4.1 Specific Rules or Restrictions
Comparative advertising is generally permitted in the USA. When engaging in comparative advertising, advertisers should nonetheless take care to specifi - cally identify the products being compared, so as to ensure that claims are truthful and not misleading, as well as to clearly and conspicuously disclose any material limitations on the comparisons. As with oth - er advertising claims, advertisers are also generally responsible for ensuring that the claims are truthful for the entire time that they are used. 4.2 Competitor Copyrights and Trade Marks Advertisers are generally permitted to use the name of a competitor, a competitor’s trade mark, and a com - petitor’s packaging in truthful comparative advertis - ing, as needed, subject to some limitations. 4.3 Challenging Comparative Claims Made by Competitors Under both federal and state law, advertisers can gen - erally challenge false and misleading claims made by competitors, and can seek damages, injunctive relief, and other remedies. By way of example, under Sec - tion 43 (a)(1)(B) of the Lanham Act, an advertiser can sue a competitor for false advertising where the com - petitor “misrepresents the nature, characteristics, qualities or geographic origin of his or her or another person’s goods, services or commercial activities”. 4.4 Ambush Marketing “Ambush” marketing generally refers to marketing and promotional activities by parties unaffiliated with a property or event that seek to take advantage of or misappropriate the goodwill and popularity generated by the property or event. The primary basis for chal -
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