Ho, Ho, Ho … Hold On … Did Legal Approve That?


The holidays are upon us — and so too are holiday advertising campaigns. With an unusual holiday season last year, many retailers are gearing up for what they hope to be a robust holiday season. Even with concerns over supply chain issues, retailers and brands are doubling down on holiday advertising campaigns this year and pushing out festive, eye-catching content to lure customers. To stop the Legal Grinch from stealing the gifts from these campaigns, here’s a quick refresher on a few important legal considerations:

Clearing Headlines and Hashtags

Many brands come up with holiday-specific headlines, hashtags and slogans to accompany campaigns. While a holiday campaign may have a very limited cycle and thus may seem to present a “low risk” proposition for companies, it can still trigger liability. Therefore, it’s important to “clear” the use of all new content before moving forward by conducting a trademark clearance search to assess the infringement risks. Even hashtags, which can seem innocuous, can present infringement concerns and can open a company to liability.  It’s also important to consider whether already-cleared content is being used in a new or different way such that it may warrant additional legal clearance.

Influencer Considerations

Influencers are commonplace components of multimedia advertising campaigns. If you’re considering promoting your buzzy holiday product through the use of influencers, you need to ensure that your influencer complies with FTC requirements to disclosure a relationship with your company. The FTC continues to evolve and clarify its expectations related to use of social media influencers,[1] and therefore companies need to carefully consider their relationships with influencers and to monitor for compliance with FTC guidelines. In addition, it’s good practice to have carefully crafted agreements in place with your influencers to clarify expectations and to contractually bind influencers to comply with FTC disclosure requirements. The terms of the agreement will also help the influencer understand exactly what the influencer’s obligations are in terms of number of posts, social media channels, limitations and expectations regarding any third-party content, ensuring the influencer is not inflating followers, etc. Even if you intend to use an influencer on a one-time or limited basis, an agreement clarifying each party’s rights and obligations serves as an important protection mechanism.

Third-Party Content

In addition to ensuring that influencers are taking appropriate steps if they intend to use third-party content, so too should you. If any third-party content is used in connection with the campaign (e.g., images, font, music), you need to ensure that it is properly licensed and that the scope of the license covers the contemplated use.

The above considerations are just a few of the many legal issues to consider before launching your campaign. For additional considerations, please see Jennifer Dean’s May 26, 2020, post, “Intellectual Property Issue-Spotting: Common Themes in Recent Ad Campaigns” for her insights on advertising campaign review.

So, let’s eat, drink and be legally sound this holiday season by carefully reviewing advertising campaigns and considering all potential legal issues before launch.

Happy Holidays from our Team to Yours!

[1] For additional insight into the FTC’s guidance on social media influencers, please see David Merritt and Heili Kim’s November 19, 2019, post, “Hashtag Ad: FTC Releases Disclosure Guidelines for Social Media Influencers” at https://www.faegredrinker.com/en/insights/publications/2019/11/hashtag-ad-ftc-releases-disclosure-guidelines-for-social-media-influencers.

The material contained in this communication is informational, general in nature and does not constitute legal advice. The material contained in this communication should not be relied upon or used without consulting a lawyer to consider your specific circumstances. This communication was published on the date specified and may not include any changes in the topics, laws, rules or regulations covered. Receipt of this communication does not establish an attorney-client relationship. In some jurisdictions, this communication may be considered attorney advertising.


About the Author: Emily A. Bayton

Emily helps clients protect and strengthen their intellectual property assets in the United States and internationally through comprehensive brand and marketing strategies. She has almost two decades of experience advising clients on trademark, copyright, rights of publicity, domain name, and advertising and social media matters. Emily has served as a trusted adviser to clients across various industries with a focus on the sports and outdoor recreation and consumer products and services industries.

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