Category - "Social Media"

Under Review: The FTC’s Focus on the Fakes

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You are thinking about buying a new laptop, or you want to try a new restaurant that’s been open a few months, so what do you do first? You check the online reviews, of course. Most consumers rely heavily on online reviews to make purchases and try new services, but how can you be sure the reviews you see are actually written by a real customer? And wouldn’t you want to know if the customer was paid or given free product in exchange for that review? The proliferation of online shopping platforms and social media have increased opportunities for consumers to find information about potential products they want to buy. However, it also makes it easier for companies to manipulate reviews or endorsements to make their products look better or their competitors look worse. Luckily, the Federal Trade Commission (FTC) is currently prioritizing this issue, through regulatory channels, enforcement actions, and litigation.

For background, when an advertiser uses an endorsement or review in connection with its products or services, there are guidelines to follow set forth by the FTC (the Guides Concerning the Use of Endorsements and Testimonials in Advertising). The FTC Endorsement Guides emphasize the basic principle of truth in advertising: that endorsements must be honest and not misleading. The Guides further state that the endorsement must reflect the true opinion of the reviewer, who must actually have experience with the product or service, and that a material connection between the reviewer and the company needs to be disclosed, if that fact would matter to the purchaser. While the Guides are not regulations, and have no civil penalties for a violation, the FTC can investigate whether the practices are deceptive or unfair under the FTC Act if an advertiser does not follow the Guides.

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Thinking About Engaging an Influencer for Your Next Promotion? Plan Ahead!

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Those running promotions such as sweepstakes or contests on social media may seek to engage influencers, or individuals with significant social media followings, to enhance their promotions’ visibility and boost engagement. But before doing so, there are a variety of rules and regulations to consider and evaluate, including Federal Trade Commission (“FTC”) rules relating to misleading, deceptive, and unfair advertising, state-specific rules relating to promotions, and social-media-platform-specific rules, among others. This post gives a high-level overview of issues to consider before engaging influencers to boost your next contest or promotion.

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Launching a Sweepstakes or Contest on Social Media – What You Should Know

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As discussed on our blog previously, here and here, a promotion sponsor must finalize Official Rules before a promotion begins. But using a third-party social media platform to administer your promotion or accept entries raises additional issues that must be considered, particularly when the promotion involves the submission of user-generated content (“UGC”).

Using a social media platform to administer your promotion raises two additional issues: (1) ensuring compliance with the platform’s specific promotion requirements; and (2) ensuring that the sponsor is protected from liability if the promotion involves UGC. This blog provides a high-level overview of issues to consider before administering your promotion on a third-party social media platform, and in particular when your promotion involves submission of UGC.

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

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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:

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A Social Contract – Terms to Consider for Influencer Advertising Agreements

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Whether you’re paying big bucks for a Kardashian or providing discount coupons to a local star, hiring “influencers” to promote your company, products or services has become commonplace. But it’s not yet common to contract with influencers for their services. And that’s a mistake! If you’re hiring an influencer, you should strongly consider a written agreement.

But first, what is an influencer?

An “Influencer” is: An individual who has the power to affect purchase decisions of others because of his/her authority, knowledge, position or relationship with his/her audience. For legal purposes, an influencer is anybody your company is compensating to post, print, or otherwise disseminate information for a commercial purpose.

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Will New FTC Endorsement Guidelines Make A #Hashtag of Influencer Advertising?

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In a world where social media influencers can wield more power over consumers than network media buys, the Federal Trade Commission’s (FTC) Endorsement Guides felt increasingly like a relic from an earlier era. While not wholly ineffective, the FTC’s formal guidance to businesses on the use of endorsements and testimonials in advertising was still a policy with roots in the limited media environment of the 1970s, the decade when the Guides originated. There were no Instagram influencers, no sponsored posts, and no hashtags in 1980, when the Guides were finally enacted, and even cable television was in its infancy. And despite important and well-intentioned 2009 amendments crafted during the early days of social media, so much has happened in the intervening years that the Guides never seemed fully engaged with the radical implications of a marketing environment where blurring the lines between advertising and reality is more often a feature rather than a bug.

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Introducing TCAMToday – a Faegre Drinker℠ blog on T®ademark, ©opyright, Advertising & Media

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Faegre Drinker Biddle & Reath LLP (Faegre Drinker) launched global operations on February 1, 2020. Faegre Drinker is the combination of Faegre Baker Daniels, an international law firm with deep roots in the Midwest, and Drinker Biddle & Reath LLP, a full-service national law firm with storied East Coast origins.

With more than 1,300 attorneys, consultants and professionals in 22 locations across the U.S., U.K. and China, Faegre Drinker is one of the nation’s 50 largest law firms based on size and projected gross revenue.

We are very excited to introduce TCAMToday, Faegre Drinker’s successor to the DB®anding Blog.  Our newly expanded team of over 30 T-CAM professionals will continue to provide fresh commentary on Trademark, Copyright, Advertising and Media topics ranging from anticounterfeiting to sweepstakes and promotions.  Watch this space!

Tech Brings Authentication Challenges In Ad And IP Cases

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The ability of any individual, without access to sophisticated technology, to decipher the “authenticity” of any experience is diminishing daily. Moreover, this threat to the integrity of the law goes beyond digital impersonation and “deep fake” software driven by artificial intelligence. The famous Marx Brothers line, “Who ya gonna believe, me or your own eyes?” was once funny because it was ridiculous. Soon, it will be a description of our jobs and our lives.

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Let the Games Begin – But Only After the Rules Are In Place (Sweepstakes & Promotions Series Part 2)

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As we mentioned last month in our kickoff post on this topic, we are excited to dive deeper into the world of sweepstakes and promotions law.  This post explores several key elements to keep in mind when formulating the official rules and abbreviated rules for a promotion.

The main goal of the official rules in any promotion is two-fold: (a) to inform participants and the public regarding the details of the promotion, and (b) to comply with a series of federal and state laws and regulations.  Both of these goals are critical – no company wants to face either disgruntled participants or angry regulators.

The rules must be in place and finalized before the promotion begins.  If you are running a U.S.-based sweepstakes with a total prize value of over $5,000, you may also be required to register and bond the promotion with various state agencies up to thirty days before the promotion begins. Registration will require you to submit a copy of the promotion rules, so keep in mind that in those cases, the rules must be finalized at least thirty days before the beginning of the promotion.  That means the clock is ticking!  Depending on the type of promotion, other state laws and regulations may also be implicated, so be sure to check well before the beginning of the promotion. Continue reading “Let the Games Begin – But Only After the Rules Are In Place (Sweepstakes & Promotions Series Part 2)”

Launching a Sweepstakes or Contest – What You Need to Know (Part 1)

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As we proudly admit on this blog’s “About Us” page, we’re passionate about all things brand related – and what better way to promote your brand than by running a sweepstakes or contest?  At a time when we are seeing the “gamification” of every part of our lives, it should come as no surprise to see that many brands now include prizes and rewards as a significant component of their consumer outreach.  Where once upon a time this was a niche explored by only a handful of large companies or fly-by-night operators, today, prize promotions are seen by many of our clients as among their most effective forms of advertising.

The concept is wonderfully simple: in a prize promotion, someone enters the promotion, and someone wins a prize.  Yet this basic formulation encompasses a nearly endless number of variations, including sweepstakes, contests, games, trade promotions, sales incentives and viral engagement.  Some of these variants are legal; some are not.  And because we have been so passionate about sweepstakes and contests for so long, we’ve decided to explain the basics in a helpful, multi-post series on the topic.  There’s a lot of nuance, and it would be impossible to cover it all in one place, but we think that once we’re done you’ll be as excited about this area of the law as we are. Continue reading “Launching a Sweepstakes or Contest – What You Need to Know (Part 1)”