Sample Cover Page of Exam-Take Home



Exam Number: __________________

GEORGETOWN UNIVERSITY LAW CENTER

EXAMINATION IN ADVERTISING LAW: TAKE HOME EXAM

Professor Rebecca Tushnet Date Exam Opens: Tuesday, May 3, 2016 at 9 am

Date Exam Closes: Tuesday, May 17, 2016 at 5 pm

INSTRUCTIONS:

1. This is an OPEN book exam. You may consult any inanimate object; however, no credit will be given for citations to any materials that were not assigned for this course. You may not discuss the content of this exam with any other person, whether or not that person is enrolled in this class. Although the questions are based on real situations, I have changed the facts in ways subtle and not-so-subtle. In answering these questions, assume that jurisdiction is proper and that there are no statute of limitations or other general procedural bars.

2. This 8 hour exam must be downloaded and submitted using the Online Exam/Paper Management System. This exam will be available throughout the exam period. You may only work on the exam for 8 hours.

3. Each question is worth a stated number of points (total of 75 points). You should allocate your time and effort accordingly.

4. There is no specific word limit. Thus, please think, organize, and prioritize carefully before you write. Cogent, well-structured answers that devote the most analysis to the most important issues will be graded more highly. Please do not waste space by restating the question or the facts of cited cases. If you need additional facts to answer a question, please state the specific facts needed and how they would affect your analysis. Also, please don’t call a person “he” if she’s clearly identified in the facts as female. I reserve the right to deduct points if you do. Corporations are fine as “it” or “they.”

5. This exam is final.  No clarifications or corrections will be provided.  If you believe there is an error, inconsistency, or omission in the exam, please state your assumptions about the issue within your discussion of that issue.

6. Exams at the Law Center are graded on an anonymous basis. The Student Disciplinary Code provides that the “unauthorized breach of anonymity in connection with a blind-graded examination” is a disciplinary violation. Therefore, be sure that you do not reveal your identity as the author of an examination in your answers themselves, in any communications with the professor, or otherwise discuss the substance of the exam with your professor(s) or with any other student from the time the exam is first administered until after grades are published.

7. You must remove personal identifying information from your exam document. Failure to remove any personal identifying information is an exam violation which will be referred to the Ethics Counsel. Instructions on how to remove personal identifying information from your take-home exam are available online.

8. Citation to relevant materials is required in order to receive full credit. You do not need to use Bluebook form. For example, simply state: (Wal-Mart) or (§43(a)) or (§1127(a)) – either form for the statutory citation is fine. You can use italics, bold, or whatever you’re most comfortable with to indicate case names.

This exam consists of 11 pages, including this cover page. Please be sure your exam is complete.

Please be sure that you use your exam number (not your student ID number or social security number).

HONOR STATEMENT

BY SUBMITTING THIS EXAM THROUGH THE ONLINE SYSTEM, I AFFIRM ON MY HONOR THAT I AM AWARE OF THE STUDENT DISCIPLINARY CODE, AND I HAVE NOT WORKED MORE THAN 8 HOURS ON THIS EXAM.

Question 1: Catching Fire (50 points total)

operates an Appstore in which customers can view and download apps to use on Android mobile devices or Kindle Fire tablets. Apps take many forms, but include functions that allow users to read books, play games, stream movies, check weather, and organize files. Apps may be free or come at a cost to download and install. Certain user activities within some apps also come with monetary charges, starting at $0.99 and ranging up to $99.99.

These charges are known as “in-app purchases.” Amazon started charging customers

for “in-app purchases” or “IAPs” in November 2011. Many apps geared towards children, and likely to be used by children, offer in-app purchases. For example, a child may be prompted to use or acquire seemingly-fictitious currency, including a “boatload of doughnuts, a can of stars, and bars of gold,” but in reality the child is making an in-app purchase using real money.

In fact, in developing its Kindle Fire tablet, Amazon identified “soccer parents” as a key target customer base, referring to them as “low-hanging fruit.” A marketing document stated that “‘IAP’ isn’t a concept widely known by customers.” Customers’ top searches in selecting apps indicated that they were seeking “free” apps to use.

In many instances, the person initiating the in-app purchase was a child: in a document discussing company strategy to promote increases in in-app purchasing, Amazon noted “the disconnect between the account owner (e.g., parent) and the app user (e.g., child).”

When Amazon’s Appstore first implemented in-app purchases in November 2011, the

default setting did not require account holder approval, by entry of a password or any other means, prior to completion of an in-app purchase. Only if a customer had previously enabled parental controls would the IAP require entry of a pin code or password.

In the Amazon Appstore, individual apps were displayed using what is called a “detail

page,” containing information relating to the app. When in-app purchases were launched in November 2011, the detail page looked like this:

[pic]

A button below the name of the app in the upper-left corner included the price of the app download: either “FREE” or a set dollar amount. The price button itself did not acknowledge the existence of in-app charges. Underneath the header, “Description” was a long note providing more information about the app. While the “Note” included information about the presence of in-app purchases, a user often had to scroll down

“below the fold” to read it:

[pic]

Within the Note is language, about two-thirds of the way towards the bottom, beginning, “PLEASE NOTE.” After making an in-app purchase, Amazon customers were always notified via an e-mail.

Amazon received many complaints from adults who were surprised to find

themselves charged for in-app purchases made by children. In the first two months of the Amazon Appstore offering IAPs, Amazon received 11,110 customer service contacts requesting refunds for IAPs. The “primary root of the contacts was accidental purchases due to parent control issues.”

In March 2012, Amazon introduced a password prompt feature for in-app charges of $20

or more. This initial step did not include charges below $20 or charges that, in combination, exceeded $20.

In February 2013, Amazon began to require password prompts more frequently, though not consistently. Passwords became required when: a purchase over $20 was initiated, a second IAP purchase attempt was made within five minutes of a first, and when parental controls were enabled. And once a password was entered, in-app purchases were often then authorized for the next sixty minutes. The fact that one password entry authorized in-app purchases for an additional window of time was not explained during the process.

In May 2013, Amazon added a password requirement for all first-time in-app purchases

on Kindle Fire tablets. The prompt is pictured below:

[pic]

The prompt refers to authorization of a singular “in-app purchase.”

In June 2013, Amazon changed the configuration of the AppStore so that the words “In-

App Purchasing” would appear on an app’s description page:

[pic]

The words, “In-App Purchasing” are smaller than the remainder of the text on the screen and in the same font and color. The words “In-App Purchasing” represented a clickable hyperlink leading to a further explanation, but this was not represented in color or underlining.

In June, Amazon refined its password prompt for first-time in-app purchases, allowing customers to select whether they would like to require a password for future IAPs:

[pic]

It is Amazon’s stated policy that in-app purchases are final and nonrefundable. Nothing on Amazon’s website states that in-app charges are refundable. The confirmation email Amazon sends to consumers following an in-app charge does not provide any information about whether refunds for in-app charges are available or how to obtain one.

However, in practice, until it adopted the new password verification scheme, Amazon usually offered refunds when specific customers complained that children had made in-app purchases without parental consent, resulting in a refund rate of 17% for IAP (very high by Amazon’s standards). 1,573 customers who have sought refunds did not receive them. Now that the current password screen is in place, Amazon refuses refunds when customers complain about unauthorized purchases by children.

The majority of in-app purchases by customers were for $2.99 or less. Amazon made $86 million in revenue from in-app purchases for child-focused apps and also provided $10 million in refunds.

Amazon justified its decisions around in-app purchases by explaining that consumers prefer “seamless” experiences and may abandon desired actions if they require re-entering a password, especially on a mobile device.

Questions:

a) Were and are Amazon’s past and current practices deceptive under the FTCA? (15 points)

b) Were and are Amazon’s past and current practices unfair under the FTCA? (10 points)

c) Suggest specific improvements to Amazon’s IAP policies, not necessarily limited to its disclosures (though you are welcome to focus on disclosures if you think that’s the best option), to ensure compliance with the law without unduly disrupting Amazon’s business objectives (10 points).

d) Assume a class of California consumers sued Amazon under California consumer protection law for its practices. Identify three key issues in such a case and explain how a court should resolve them. (15 points)

Question 2: LARP and the Real Girl (25 points)

Dick Roman is the owner of trademark registrations for the mark ARCHERY TAG for use in connection with non-lethal arrows and archery bows, and face masks for archery.

LARP is “live action roleplay,” which can include mock battles, including mock battles using non-lethal bows and arrows.

“Archery tag” is also used to describe the activity of using these non-lethal bows and arrows, as detailed in the following representative excerpt from a news story:

Paintball-like “Archery Tag” Rises in International Popularity

[pic]

Caption: Archery tag combines the rules of dodgeball with the high octane action of a paintball match.

At the sound of a whistle, two teams of five rush out into a battlefield dotted with inflatable barriers, each player armed with a bow and a single foam-tipped arrow. The teams take cover and quickly begin launching volley after volley of arrows at one another, hoping to tag opponents or knock out the five discs of a small target on the opposite end of the field.

Is this something you would be interested in? If so, you may want to think about signing up for archery tag, a sport that is touted as a cross between archery, dodgeball, and paintball. The activity is loosely managed by the company of the same name, Archery Tag, which has licensed the game out to individual businesses across the globe—and business seems to be booming. Archery Tag currently has over 350 licensees in 34 countries, the majority of those being in the United States. Finding a location to play a game is as easy as looking it up on the company’s website.

What really sets the sport apart is its potential to get kids involved in archery.

“We’re hoping it will open the sport of archery up to a whole new group of people who wouldn’t know about it otherwise,” Sam Humphreys, who recently became the first person to open up a permanent archery tag location in New Zealand, told the Taranaki Daily News.

Larping, a company founded by Charlie Bradbury, sells products that compete with Roman’s non-lethal arrows.

Bradbury also purchased “archery tag,” among other terms, as keywords for searches, and displayed the following ad text when users searched for “archery tag”:

[pic]

In association with its purchase of the ad keyword “foam arrows,” Bradbury also ran the following ad:

[pic]

Bradbury has not conducted any studies assessing the comparative superiority of the parties’ products.

Bradbury also used Roman’s website to gather a list of Roman’s licensees. She contacted them and attempted to persuade them to switch from Roman’s arrows to Larping arrows, though as yet only one licensee has switched.

After Roman sent Bradbury a threat letter alleging trademark infringement and false advertising and threatening to sue, she set up a Gofundme page soliciting donations to use in her legal defense against Roman. The page included the following claims:

[pic]

• “The End of LARP Archery in North America”;

• “I’m reaching out to you today with something that has the potential to ruin LARP in North America as we know it, specifically in regards to LARP archery.”

• Roman “is trying to limit archery tag only to licensed Archery Tag events and ban its use in LARPing”;

• “Over the past few months I’ve become stuck in a legal battle with someone who claims to own trademark rights in archery tag, the kind we play in LARP . . .”

• “Very few people in the LARP community have a substantial income. I, myself, have a day job and sell these arrows (and other LARP equipment) as a part time hobby which doesn’t generate a great deal of income. However, right now, the state of the entire LARP hobby is at risk”;

• “In the cease and desist letter [posted by Bradbury as part of the Gofundme campaign] you will see many claims against me. Some of which are completely untrue, while others are ‘junk’ that is trying to be passed off as breaking the law when in fact we have done nothing wrong.”

Bradbury’s sales of her arrows have reached $47,000. She received over $30,000 in donations for her Gofundme campaign (the image above is from very early in the campaign). The campaign page displays public comments from donors such as:

[pic]

Roman has received over 100 emails through his website condemning him and supporting Bradbury, the most extreme of which is the following:

02/09/2016 mary kuin

You’re a worthless bottom feeder who is attempting to use intellectual property to monopolize and destroy a hobby. I sincerely hope you get brutally murdered.

Other emails, while less violent, have pledged to refrain from buying Archery Tag products as long as Roman is suing Bradbury. E.g.:

02/09/2016 Jason Painter

I find it so inane that someone would think they own the idea of hitting other people with a foam arrow. Hahaha.

We're going to go buy some brand that is definitely not yours at Sports Authority just as a big screw you. Good day sir. Go f k yourself.

Identify and evaluate Roman’s possible claims against Bradbury, including Bradbury’s defenses.

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