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Hedge Fund AdvertisingFundamentals and New Developments
Presented by
Mark Diamond Wade Savoy Richard Mooney
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“Reasonable steps” to establish purchasers are accredited investors
What are "reasonable steps?"
Securities Law Issues
Private offering
Section 4(a)(2) of Securities Act of 1933 and Regulation D
JOBS Act
Permits general solicitation and advertising under certain circumstances
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General Solicitation in Hedge Fund Context
- Traditional solicitation methods
one-on-one meetings; third party solicitation agents
- Use of subscription agreements
- CPO requirements
Rule 4.13(a)(3) – "marketing to the public"
- KYC and AML requirements
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Investment Adviser Advertising Rules
General anti-fraud rule
Types of advertising:
TestimonialsPast recommendationsInvestment programs or formulas
Reprinted articles
Client lists
Graphs and charts
Model or hypothetical results
Performance Information
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Types of Advertising (continued)
Prior adviser track record
Composites
Recommendations by regulatory authorities
Seminars and speeches
Websites
Research reports and newsletters
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Disclaimers
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Marketing and Intellectual Property
Trademarks
and Branding
TM R
C SM
False
Advertising
Working with Advertising and Marketing Firms
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Trademarks and Branding
What is a TRADEMARK?
Any word, phrase, symbol, or design that identifies and distinguishes
the source of the goods or services of one party from those of others.
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Trademarks and Branding
What is a TRADEMARK?
Walmart
Apple
Charles Schwab
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Trademarks and Branding
What is a TRADEMARK?
iPhone Coke Amazon
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Trademarks and Branding
What is a TRADEMARK?
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Trademarks and Branding
What is a TRADEMARK?
What’s in Your Wallet?
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Trademarks and Branding
How do I get a TRADEMARK?
USE REGISTRATION
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Trademarks and Branding
How do I get a TRADEMARK?
INTERNATIONAL
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Trademarks and Branding
How is a TRADEMARK infringed?
CONFUSION
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Trademarks and Branding
Similar Names
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Trademarks and Branding
Picking a Name
Apple Apple Apple
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Trademarks and Branding
Picking a Name
TRADEMARK SEARCHES
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False Advertising
VS
VS
Puffery Substantive Claims
"We're the best""We outperform
the industry"
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False Advertising
PROOF:
Before, Not After
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Working with Advertising and Marketing Firms
Use them for advertising and marketing, not legal advice Ownership of the
materials they create for you
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The Possibilities (for litigation)Are Endless
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Securities Law Litigation
Traditional securities suits
Quick summary Not the focus
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Intellectual Property Litigation
Trademark
TMCopyright
C
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False Advertising
State Laws
Statutory DamagesPotential Class
Action
Proximately Caused Losses
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Other Torts
Fraud
Negligent Misrepresentation
Suppression of Facts
Interference with Contract
Punitive Damages
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Unfair Competition
Many States – Catch All Provision
Generally Very Lax Proof Standard
Injunction, Restitution, Attorney Fees
California New York
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Others
THIS IS AMERICA
Anyone Can Sue Anybody for Anything
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Questions????
Wade [email protected] ext. 237
Richard [email protected]
Mark [email protected] ext. 232