The Hitler Downfall meme is everywhere (we’ve already covered copyright issues of the Hitler Downfall video).

This weekend, the New York Times even published a primer on making your own version of the scene, in which der Führer’s fury at the collapse of his plans can be translated into the latest pop-culture news.

Bob Battle’s Virginia DUI Lawyer blog credits Seattle DUI defense attorneys at Cowan Kirk Gaston for extending this to lawyer advertising.  It’s another example of law firms trying out social media.

I don’t think of this as an ad, or even necessarily as marketing. It more like a law firm taking part in public dialog, and using a meme to its own ends.

Bad advertising is the fun pause that refreshes here on UsefulArts.

On our previous bad advertising safaris, we’ve:

1. Found the the worst law firm ad ever, and helped get it pulled down.
2. Treated the airport as a museum of misfit ads.
3. Pointed out that UPS has a pretty bad tagline.
4. Chronicled the offensive or silly use of President Obama’s image (you be the judge).

Our fifth ad advertising foray takes us to the grocery store.  Some of the finest talents in consumer-packaged goods design and manage Kellogg’s cereal boxes. The cereal aisle is tough, because it is hyper-competitive, and because the packages must connect with adults and kids with radically different (and often preposterous) value propositions.

Kellogg’s Rice Krispies and Fruit Loops Aspire to Pharma Aisle

Does Rice Krispies really help my child’s immunity more than, say, fresh fruit?  And though Froot Loops now provides fiber, isn’t it still loaded with crap that most adults wouldn’t intentionally feed to their kids?  What’s a better source of fiber: “Fruit” or “Froot”? Go ahead, pick any froot.

And (for any Kellogg’s staff now joining us) good job on including the vitamin source of your antioxidants, as required by the FDA, in a way that makes it look like an additional nutritional claim. Poetry in packaging persists.

Kellogg’s Soylent Green, Now With More Girls!

Wieneke’s first law of advertising is to avoid associating your product with death.

Perhaps a derivative of this should be not associating food products with illness. Somewhere, a brand manager loved this wacky retro game enough to willingly put a cartoon of a sick person on their package, and the giant word “Operation” across its top.

Isn’t Operation a game where you win by pulling parts out of a patient’s body?
Look at the man’s face: does it say “eat my remains” or “stay away“?
Even though it’s made with real fruit, the rest of this design screams medical waste.

Are there ads that just seem wrong, or that need further comment?
Let me know on Twitter, or by email: strategy2.0<at>gmail.com.  I’m always glad to get ideas, guest posts, and encouragement for a brief respite from online marketing law.

The uniformly wonderful Georgetown Law prof, Rebecca Tushnet, notes in her 43(b)log a recent opinion of the South Carolina Ethics Bar that is somewhat dismissive of  Section 230 of the Communications Decency Act.

State bars are struggling to figure out how to regulate everything from keyword advertising to chat-room participation to marketing done by intermediaries. There is little consensus, and sometime bar associations head in new and surprising directions.

Consider the ruling by the South Carolina ethics body that lawyers who claim or edit profiles on their party sites then become responsible for future content posted there by others. The ruling explicitly includes peer endorsements, the service’s own ratings, and client comments: three things the laywers aren’t directly in charge of.

Continued

The most frequent response to my question about what online law issues our readers are most concerned about centered on the still undetermined law around the use of trademarks as  to trigger advertising in search engines.  The issue is both prominent and vexingly permanent in the minds of both IP layers and and search marketers.

Keyword advertising: Should there be trademark fair use to promote efficient speech?
The question of triggering search advertising by the use of trademark in the search query has been litigated for over ten years now. It took us until 2009 to finally get a jury opinion, in Fair Isaac v. Experian.

The jury found for the defense that the keyword-triggered ads did not create a  likelihood of consumer confusion. Unfortunately there have been contradictory bench rulings, so this settles nothing.  This is a huge problem.

For law to be effective it must be comprehended, and enforcement must be predictable.  This corner of trademark law has is neither. Witness the case, or should I say cases, of Rescuecom v. Nearly Everyone. On one hand they are suing Google for a competitor having ads triggered when visitors search on their trademark.  At the same time they are defending themselves on the identical charge claiming fair use.  They want it both ways, which is how the courts are serving up rulings. This mutes the effect of the law,  making IP Law more a  game of chance than a function of justice.

The Free Speech Issue That Illustrates Public Interest
As a blogger who has worked for news organizations, I can point out numerous ways that protecting brand terms from keyword advertising stifles legitimate public dialog.  Newspapers use brand terms to share vital news with consumers, as do advocates such as unions to speak about brandholders.  Though these uses are free of any “use in commerce”, many  trademarks are outright blocked by search engines who restrict the use of brand terms by anyone but their owners.

Eastern courts tend to rule for speech, Western ones for marks. And so the song that never ends enters 2010.

My still germinating collection of 2010 predictions will have to include one of this blogs repeated themes, the impending rise of regulation of digital marketing. (See my post “Regulation is Headed Toward Digital Marketing, Do Something.“)

Now that the FTC has staked out a requirement for bloggers to prevent the false appearance of independence if they’re being paid, there’s just one catch. How do you start to enforce such a rule? My prediction: a show trial with a chaser of  strategic inaction.

The same article reports that the Commission is also “crafting its next move” to regulate online behavioral targeting by requiring users to “opt in.” The FTC’s northeast regional director, Leonard Gordon, explains this is because “studies show that most consumers don’t read privacy agreements.”

FTC Cynicism in the Public Interest
See the paradox? He uses consumers’ disinterest in reading agreements as the basis for requiring greater use of them.  This is a cynical recommendation. Its goal isn’t providing informed “opting in”. Quite the opposite, it is to make gathering behaviorial data and customization an Internet harder to undertake. And that may be the wrong choice.

Behavioral Targeting May Be Core to the Web’s Success Model
The reality of the “free Internet” is that much of its content is paid for by advertisers who do so with no contractual assurance of return. Competition creates the need for data to optimize these ads. Better tracking and targeting is what has kept the Internet growing while other channels are losing ad dollars.

Continued

Congratulations, and thanks to you, Lindeman, Alvarado, & Frye, the law firm several hundred of you have helped hector, has pulled down the images we called the worst advertising ever.

It was amazing to see some of you commenting them on their site with Google Sidewiki, and advocating in social media for what amounts to a bit of a karmic wake-up call.

Our friends at the Child Law Blog gave us collectively a nice hat tip….

Nothing will stop the defense bar from its relentless pursuit of clients, including bad taste. Thanks to the watchful eye of the UsefulArts.us blog, the Texas defense firm of Lindeman, Alvarado, & Frye has been exposed for creating an unfortunately much-needed child pornography defense practice. This in and of itself is not so objectionable, but the now-removed “just or about to be abused-child” images used on the firm’s website to promote this specialty are.

And as I noted in the UsefulArts Twitter Feed, sites as diverse as the Feminists Law Professors Blog and Right Wing News picked-up on our crusade.  The only thing better than results are fast results.  Thanks, everyone, well done!

I’ve blogged about firms finding growth by starting innovative gaming practices or going deep into biotech. But not all legal innovation is for the good.

The defense firm of Lindeman, Alvarado, & Frye has gone and started a kiddie-porn practice.  And what better choice of imagery for attracting child porn defendants than….yes, wait for it…… a guilty looking woman-child showing some skin.
(Please share  your comments on this below.)

Here’s their copy, which again, I submit to the tender mercies of your comments:

An accusation of child sexual assault, abuse or molestation can be life-altering. Without the help of an experienced defense lawyer, you may face lengthy imprisonment and mandatory lifetime registration as a sex offender.

There are also the personal costs. Your reputation and standing in the community may never be the same. Your family relationships may be damaged permanently. With this much at stake, can you afford to hire an attorney who is anything less than extremely well-versed in both the legal and personal aspects of these cases?

Would anyone care to speculate on which “personal aspects of these cases” counsel may have been referring to?

In the court of bad advertising, can you plead insanity?
But wait, here are two more…..Lindeman, Alvarado, & Frye proceeds to go totally off the ranch with these other case types.

Plaintiff Intimidation Our Specialty?

Hey, Sara-Lou, Daddy’s seeking a defense lawyer, how about these guys?

Would anyone like to send this firm a message?
Its simple to do. See my earlier post on Google sidewiki, and go type what you think of this firm’s advertising on their home page.

Their third web ad goes even further in stupid and tasteless bad advertising…

Continued

In April, the FDA sent warning letters to 14 companies, including Eli Lilly and Co and Merck & Co Inc., about their drug marketing online, saying that ads for certain products were misleading and did not contain any risk information.

But it’s hard to include risk information when your Twitter post is limited to 140 characters. So the FDA called a hearing. More than 800 people attempted to attend the event, which had seating for only 350. Fortunately, proceedings were streamed on video, so you can watch here.

Participants were asked to consider a number of questions, including how much responsibility drug makers bear for online content about their products and how to determine when online chats about a medicine are influenced by the manufacturer.

So, what do you think?
Should drug makers get a hall pass from disclosure rules in short format media? So they would Twitter, blog, and provide search advertising mentioning the benefits of their goods, without disclosing risks? Or is advertising Lipitor different than selling jackets at Kohls, and just not right for ad venues which risk and benefit can’t be adequately presented.

Verizon’s all-3G network makes ATT’s 3G map look spotty at best. However, ATT has tremendous 2G coverage, which means though you may not be able to use an iPhone’s online features, you’re not entirely “out of touch,” as Verizon’s ad states.  Engadget is covering this case like a blanket.

As Niley Patel notes:

All that said, it’s hard to deny that Verizon’s ads made a perfectly valid point: using an iPhone on AT&T’s network in New York or San Francisco is an exercise in frustration, regardless of whether you have 2G or 3G, and we’ve had zero problems on Verizon. Let’s just hope AT&T is working as hard to fight these ads with its actual service as it is with its lawyers.

Dave Wieneke’s mantra for consumer marketing: “Reading is for suckers”

Nowhere is this more true than when lawyers sell their own expertise.  By nature, lawyers write in legalese. It’s their training. I offer that legal writing and copy writing use opposite muscle groups.

However,  when lawyers speak, they phrase things in ways that connect with people far better. That’s also part of their training; it’s how they sell best. Jim Sokolove is legendary because he communicates to consumers on TV and on YouTube.

In an industry plagued by major trust issues, video should be the predominant marketing tool. When consumers think of lawyers, they most often think visually and in terms of TV: Perry Mason, LA Law, Boston Legal, The Practice.

And hey, those of you who are not lawyers or legal marketers are in no way off the hook. This should be a wake-up call.

The legal industry is slow to adopt new technologies, particularly in marketing. These forces are starting to change our often-staid industry. So if you’re not focused on video in your marketing mix, then get your head up; this ball’s heading your way.

Over the next week I’m going to describe several ripe opportunities to take your business marketing in new directions using video. Perhaps you’ll find yourself adopting my consumer marketing mantra (get used to it): Reading is for suckers.

And before you ask, yep, I’m very aware that this message is all copy.  No consumers here, just us online law and marketing wonks.  Tell me what you think?  Is video huge in your world, or just a bright shiny object?