Why and How Brands Selling on Amazon Should Enroll in Amazon Brand Registry

(Originally published in the Dallas Business Journal, October 2, 2019.)

If you are selling products on or through Amazon, this article will discuss why you should consider enrolling your brand name(s) in Amazon Brand Registry, and provide information about how to do so.

Why you should enroll in Amazon Brand Registry

There are a number of benefits to brand owners enrolling in Amazon Brand Registry, which was created to help build and maintain customer trust and ensure customers that they are purchasing authentic goods. Ultimately, Brand Registry helps you:

  1. Ensure that your brand is accurately represented on Amazon.
  2. Monitor how third parties are using or misusing your brand on Amazon (including searches for text, as well as images of your products and logos).
  3. Find and report potential infringers and counterfeits [1]

As a brand owner, you have a duty to police your marks to protect against infringement and act reasonably in protecting your trademark rights to avoid diminishing the value of your brand, damaging your goodwill and weakening (or even losing) your mark…and Amazon Brand Registry is another tool in your arsenal to help you do that.

Although reporting alleged infringement of your brand or other violations of Amazon’s Intellectual Property (IP) policy to Amazon using the Brand Registry Report a Violation tool is not the only mechanism to enforce your rights (and you still may need to bring legal action against the alleged infringer to address infringement, especially outside of the Amazon environment), it can be an effective and much less expensive, expedited way to quickly address issues of concern on Amazon’s platform.

For example, Amazon can remove a product listing and even suspend an account due to violations of laws and/or Amazon’s policies. And, although you don’t have to have an Amazon Brand Registry user account to report alleged intellectual property infringements, it’s no doubt easier for Amazon to take action on behalf of those who have enrolled their brand(s) in the Brand Registry than for those who use the publicly available form to report. And the Brand Registry and other systems Amazon has put in place appear to be making a difference, as Amazon claims that 99% of all Amazon page views by Amazon customers landed on pages that did not receive a notice of potential infringement.

How to enroll in Amazon Brand Registry

In order to enroll your brand(s) in Amazon Brand Registry, you will need:

  1. An active registered trademark for your brand(s) in each country [2] where you wish to enroll (e.g., the United States Patent and Trademark Office (USPTO)). The mark(s) may be text-only or image-based (e.g., logo, stylized font, etc.) and needs to appear on your products or packaging. You will need to provide the following information to Amazon:
  • Your brand name that has an active registered trademark.
  • The registration number for the trademark.
  • A list of product categories (e.g., apparel, sporting goods, electronics) in which your brand should be listed.
  • A list of countries where your brand’s products are manufactured and distributed.

Note: It can take anywhere from six months to a year or more to obtain a trademark registration. Although you may be able file a trademark application yourself, trademark law and prosecution of trademark applications can be difficult to navigate. Therefore, it is advisable to work with a trademark attorney to obtain registration of your mark(s) in the United States and other countries.

2. An existing Amazon Vendor Central or Seller Central account, or create a new Amazon account for free, to sign in to Amazon Brand Registry. Using the same username and password that you use to sign in to Vendor Central or Seller Central to create your Brand Registry account ensures you get full access to the features and benefits from vendor and seller services linked to your Brand Registry account.

3. Verification that you are the rights owner or the authorized agent for the trademark.

  • Once you submit the information to Amazon Brand Registry, Amazon will attempt to reach out to a contact associated with the trademark registration you provided to Amazon (e.g., the Attorney of Record with the USPTO for the trademark registration).
  • Amazon will send a verification code to this contact, and the contact will need to provide the code to you, and you will then need to provide the code to Amazon to complete the enrolment process.
  • Once Amazon has verified the information you provided, you will get access to Amazon Brand Registry’s benefits and features that help you protect your brand.

Once you’ve enrolled your first brand with Amazon Brand Registry, you can:

  1. Add additional active trademark registrations for your already enrolled brand(s) to your Brand Registry account by logging into your account and visiting the “Update your brand profile” section via the Brand Registry Support page;
  2. Enroll additional brands at any time by clicking on Enroll a new brand from the home page of your account.
  3. Submit a request to the Brand Registry Support team to add additional representatives of that brand, including agents (e.g., trademark attorneys). All users will need to have their own Brand Registry login credentials.

Note: If you enrolled a brand in Brand Registry prior to April 30, 2017 and your brand meets eligibility requirements, you need to re-enroll your brand in the Brand Registry.

[1] Amazon also has a program called Transparency — an item-level tracing service that helps brands proactively identify and prevent counterfeits from reaching customers.

[2] Amazon currently only accepts trademark registrations that have been issued by government trademark offices in the United States, Brazil, Canada, Mexico, Australia, India, Japan, France, Germany, Italy, Spain, the United Kingdom, the European Union, and the United Arab Emirates.

Best Legal Practices for Brands Using Influencer Marketing

(Originally published in the Dallas Business Journal, July 26, 2018.)

I help people protect and profit from their brands and talents, and I love educating people about legal issues related to branding and creativity. However, you may have noticed that this article is “Sponsored Content.” That’s because my law firm, Bell Nunnally, advertises with the Dallas Business Journal, which allows us and other advertisers to provide helpful articles like this one. Or, as the cool kids would say, this article is #sponsored.

Why am I telling you this? Because I have to. Although I probably don’t need to be quite this overt, you should now have a clear understanding of my business relationship with the Dallas Business Journal and Bell Nunnally.

Influencer marketing is not new, but marketers have more recently begun to understand the power influencers have and what a great alternative influencer marketing can be to traditional advertising. This is especially true in a world that bombards us with marketing messages to such an extent that we are literally willing to pay a premium to avoid them.

Consumers prefer to interact with products and services in more authentic ways, which is why product placement in TV shows, films, and video games is so prevalent. Similarly, many people are more likely to take the recommendation of – or be influenced by – someone they respect or trust – whether that someone is a celebrity, an industry expert or thought leader, or just an everyday person who has become known for her knowledge about a particular niche.

Because these influencers have the power to affect purchase decisions of others as a result of their authority, knowledge, position, or relationship with their audiences, they can be extremely valuable to a brand. However, as these influencers typically appear to be so authentic to their followers, it can often be difficult to tell whether an influencer genuinely just loves a product or is getting paid big money to promote it.

Influencer marketing or sponsored content is probably not illegal unless it’s not clearly labeled as advertising. So, here are some details to consider before working with influencers to amplify your brand message.

1. Disclosure. Although disclosure requirements are still developing, especially as social media platforms evolve, the FTC has provided some guidance as to types of disclosures that are likely to be acceptable in various situations.

  • The FTC requires that influencers disclose anything “material” that is not obvious to the reader…and disclosures must be included in all media, including Twitter. If someone talking about your brand has been paid to do that, is an employee, etc., that information needs to be “clearly and conspicuously” disclosed in the post.
  • Even small incentives – such as sending a free product sample to a blogger hoping that he’ll write about it – must be disclosed. The letter that accompanies the product should request that the influencer disclose that fact if he writes about it.
  • Depending on the situation, #ad, #sponsored, or #client may work, although full-sentence disclosures such as “Thanks [Brand] for the free [Product Name]!” or more descriptive disclosures are better. Placement of the disclosure matters, too. General disclosures such as “some of the posts on this blog are sponsored” or relying on social media platform-provided “Advertisement” or “Sponsored Content” disclosures are probably not sufficient.
  • Provide influencers with guidelines for disclosure requirements and offer several examples of acceptable disclosures for use in various situations.
2. Protect and respect intellectual property.
  • Would you be OK if an influencer turned your product into a meme? Provide guidelines for use of your company’s marks, products, and branded materials that address this and other situations.
  • The safest way to avoid infringement and other third-party claims is to use original content. You’ll want the influencer to promise that the photos, videos, and content he publishes as part of your campaign is original to him, and you might also provide the influencer with approved content to use.
  • If you want to own or have a license to use the content created by the influencer, that will need to be addressed in your agreement.

3. Get it in writing. In most instances, you’ll want to have written agreements with your influencers. In addition to other points raised in this article, you’ll want to address the following:

  • Spell out expectations about which social media channels will be used, how many posts are required, details about specific deliverables and content (e.g., number of words, products or events to be covered, etc.), and compliance requirements.
  • Clarify what influencers will receive from your brand (free product to give away, links to guide consumers to a brand’s site, etc.).
  • Specifics about how your brand can use, re-use, or modify content and the influencer’s name, photo, etc.
  • Remedies if the influencer doesn’t follow through, does something that could get your brand in trouble, or gets arrested.

4. Effectives dates and compensation.

  • What are the start and end dates for specific campaigns, and any related milestones or deadlines?
  • What will the influencer receive in exchange for promoting your brand? A specific fee? Free products? Travel expenses to attend a launch party? When and how will payment be made?
  • How is success defined for this collaboration? Is it the number of social shares? The number of clicks to a campaign-specific link?

5. Contests and giveaways. Promotions are frequently used in influencer marketing.However, the related legal issues are pretty complex, and special attention should be paid to this area.

  • If an influencer receives sample products and decides to run a contest or “giveaway” to generate buzz, is that OK? If so, specify in your agreements that influencers must comply with any local, state, national and international laws that apply, as well as each social media platform’s rules.
  • If the influencer runs a promotion in which users submit photos, videos, or other content, you’ll want to require him/her to provide a link to the rules for the promotion (which you should provide or at least review) that also require participants to include #contest or #sweepstakes disclosures. You’ll also want rights to use the user-generated content elsewhere.

6. Monitoring and guidelines. In the end, it’s up to the brand working with the influencers to make sure they are complying with disclosure, advertising, and other legal requirements. For this reason, regardless of whether you have a written agreement with your influencers, you should provide guidelines that cover the basics, such as disclosure requirements. Preventing legal issues is key, so consider the following:

  • If a brand can’t substantiate a claim made in its advertising, an influencer can’t say it about the brand/product either.
  • Will the company have approval rights over the posts? If so, how far in advance and in what format do you want to receive the content to review? Provide details about the approval process.
  • How will you monitor your influencer’s activity related to your brand?

Social media platforms and influencer marketing have opened the doors to new and exciting ways for brands to connect with consumers. Being thoughtful about using these resources will make them more effective and help to keep your brand out of trouble.

URGENT REMINDER: 2017 DMCA Agent Designation – Previous Designated Agents Must Re-Register Online Before December 31, 2017

do-it-now-1432945_1920If you operate, manage, or host a website, mobile app, blog or other digital service  that allows users (aka third parties) to post comments or upload media, such as pictures, videos or audio files, then you need to be taking advantage of the Digital Millennium Copyright Act (“DMCA”)  Safe Harbor to protect yourself from copyright infringement liability for infringing materials posted on your site by users of your service.

Last year, the U.S. Copyright Office introduced a new online DMCA Agent Directory and registration process to replace the prior paper-based system and directory for DMCA Designated Agents, which became effective on December 1, 2016.  Designating a DMCA Agent with the Copyright Office is part of the process to protect you from copyright infringement liability for third party posts (aka user-posted content) on your app/blog/website and corresponds to the DMCA Takedown Notice Procedures that should be included in the Terms of Use on your website/blog/app.  If you do not register (or re-register) a DMCA designated agent, you risk losing the safe harbor protections of Section 512 of the DMCA, leaving you potentially vulnerable to certain types of claims of copyright infringement.

 register-1627729_1280NOTE: Even if you previously designated an agent with the Copyright Office prior to December 1, 2016 (via a paper form), you will need to submit a new designation electronically using the online registration system by December 31, 2017, or your prior designation will expire and become invalid.

In order to register, you will need to create an account.  You will need to include a primary contact (with the option to include a secondary contact) when you register, and then an email will be sent to the primary contact with instructions on how to active the account.  Once the account is activated, you will be able to complete the DMCA designed agent registration process.

You will need to register the following information:

  • Full Legal Name of Service Provider (legal entity name) and related contact information
  • Alternative Name(s) of Service Provider (including all names under which the service provider is doing business, such as domain name(s), blog or mobile app name(s), assumed/trade name(s), etc.)
    • NOTE: Separate legal entities are not considered alternate names. Related or affiliated service providers that are separate legal entities (e.g., corporate parents and subsidiaries) are considered separate service providers, and each must have its own separate designation.
  • Name of Agent Designated to Receive Notification of Claimed Infringement (which can be the name of an individual or a specific position or title [e.g., Copyright Manager, VP Legal Affairs, or General Counsel] or a specific department [e.g., Copyright Compliance Department] or third-party entity [e.g., ACME Takedown Service] rather than an individually named person as the agent…which may be preferable to avoid having to update the form if the named individual should ever leave the company) and related contact information
  • Pay the Fee (the current registration fee to designate an agent, or amend or resubmit a designation is $6.00 per service provider, with no additional fee for any alternate names)

In addition to registering a designated agent, you will also need to post copyright infringement notice provisions on your site and comply with the DMCA takedown and notice procedures. Click on the following links for more information about the DMCA Safe Harbors and what you need to do to benefit from them, as well as DMCA Designated Agent FAQs.

Renewal Requirements. In an attempt to ensure that the DMCA Agent Directory contains accurate and up-to-date information, your agent designation will expire and become invalid three years after it is registered (or last amended) with the U.S. Copyright Office, unless you renew it prior to the expiration for another three-year period. The online system will send renewal reminders to the primary and secondary contacts, service provider, and designated agent listed in your account 90 days, 60 days, 30 days, and 7 days prior to your renewal deadline.

IMPORTANT NOTICE: 2017 DMCA Agent Designation – Previous Designated Agents Must Re-Register Online Before December 31, 2017

do-it-now-1432945_1920If you operate, manage, or host a website, mobile app, blog or other digital service  that allows users (aka third parties) to post comments or upload media, such as pictures, videos or audio files, then you need to be taking advantage of the Digital Millennium Copyright Act (“DMCA”)  Safe Harbor to protect yourself from copyright infringement liability for infringing materials posted on your site by users of your service.

The U.S. Copyright Office recently introduced a new online DMCA Agent Directory and registration process to replace the prior paper-based system and directory for DMCA Designated Agents, which became effective on December 1, 2016.  Designating a DMCA Agent with the Copyright Office is part of the process to protect you from copyright infringement liability for third party posts (aka user-posted content) on your app/blog/website and corresponds to the DMCA Takedown Notice Procedures that should be included in the Terms of Use on your website/blog/app.  If you do not register (or re-register) a DMCA designated agent, you risk losing the safe harbor protections of Section 512 of the DMCA, leaving you potentially vulnerable to certain types of claims of copyright infringement.

 register-1627729_1280NOTE: Even if you previously designated an agent with the Copyright Office prior to December 1, 2016 (via a paper form), you will need to submit a new designation electronically using the online registration system by December 31, 2017, or your prior designation will expire and become invalid.

In order to register, you will need to create an account.  You will need to include a primary contact (with the option to include a secondary contact) when you register, and then an email will be sent to the primary contact with instructions on how to active the account.  Once the account is activated, you will be able to complete the DMCA designed agent registration process.

You will need to register the following information:

  • Full Legal Name of Service Provider (legal entity name) and related contact information
  • Alternative Name(s) of Service Provider (including all names under which the service provider is doing business, such as domain name(s), blog or mobile app name(s), assumed/trade name(s), etc.)
    • NOTE: Separate legal entities are not considered alternate names. Related or affiliated service providers that are separate legal entities (e.g., corporate parents and subsidiaries) are considered separate service providers, and each must have its own separate designation.
  • Name of Agent Designated to Receive Notification of Claimed Infringement (which can be the name of an individual or a specific position or title [e.g., Copyright Manager, VP Legal Affairs, or General Counsel] or a specific department [e.g., Copyright Compliance Department] or third-party entity [e.g., ACME Takedown Service] rather than an individually named person as the agent…which may be preferable to avoid having to update the form if the named individual should ever leave the company) and related contact information
  • Pay the Fee (the current registration fee to designate an agent, or amend or resubmit a designation is $6.00 per service provider, with no additional fee for any alternate names)

In addition to registering a designated agent, you will also need to post copyright infringement notice provisions on your site and comply with the DMCA takedown and notice procedures. Click on the following links for more information about the DMCA Safe Harbors and what you need to do to benefit from them, as well as DMCA Designated Agent FAQs.

Renewal Requirements. In an attempt to ensure that the DMCA Agent Directory contains accurate and up-to-date information, your agent designation will expire and become invalid three years after it is registered (or last amended) with the U.S. Copyright Office, unless you renew it prior to the expiration for another three-year period. The online system will send renewal reminders to the primary and secondary contacts, service provider, and designated agent listed in your account 90 days, 60 days, 30 days, and 7 days prior to your renewal deadline.

The Digital Millennium Copyright Act (DMCA) Safe Harbor

email-826333_1280The Digital Millennium Copyright Act (“DMCA”) is an amendment to the U.S. Copyright Act (i.e., the federal copyright law) signed into effect in October 1998 that, among other things, provides certain limitations on the liability of online service providers (“Provider(s)”) for acts of copyright infringement by third parties.

The DMCA actually contains two types of liability limitations:

The first (Section 512(d)) protects a Provider that unknowingly provides a link to infringing copyrighted material located on another site.

The second (Section 512(c)) , which we discuss in more detail here, limits the liability of Providers that store copyrighted materials on a system or network they control or operate if (among other things), (i) such storage was directed by a third-party user, (ii) the service provider has designated an agent (also referred to as a “take-down agent”) to receive notifications of claimed infringement, and (iii) the service provider has both registered the agent’s contact information with the U.S. Copyright Office and publicly provided such information on its website.

It is important to note that, because the DMCA protects against claims of copyright infringement and not other types of wrongdoing, it will not help against claims of infringement concerning trademarks or service marks, stolen trade secrets, or other types of intellectual property.  The DMCA is also not relevant to claims of defamation, although a Provider may have protection for defamatory statements made by third parties under Section 230 of the Communications Decency Act.

The DMCA Safe Harbor

The DMCA is a “safe-harbor” is an exception to the general rule that a Provider is liable for acts of infringement committed by its users. Because the DMCA is intended to protect Providers from inadvertent infringement by third parties, it will not help in a situation where the Provider itself is accused of infringement (i.e., where the Provider posts infringing copyrighted content), or where the Provider knows content it hosts infringes a copyright.

Because the DMCA can be an absolute defense to liability for copyright infringement by a third party, registering a take-down agent may even prevent someone from suing the Provider for infringement in the first place.

Online Service Providers

In essence, you qualify as a Provider and are eligible for protection under the DMCA if you operate, manage or host a website, blog, mobile app, social media platform, portal, game, or other digital service that allows users (aka third parties) to upload or post content. That can include the following activities:

  • Allowing users to post comments or review, or respond to discussion threads
  • Allowing users to upload media, such as pictures, .gifs, videos or audio files

The above is true because the definition of “infringe” or “infringement” is very broad and captures many activities. For example, if your site allows users to submit a thumbnail sized avatar in connection with the user’s comment and the user chooses an image that infringes a third-party’s copyright, you can be liable. Knowledge or intent are not relevant for purposes of liability for infringement under the copyright law; so, you can be held responsible for copyright infringement even if you have no idea these activities are going on (and, if you have not registered a DMCA agent, even if you take down the offending material immediately after being notified!).

How to Benefit from the DMCA Safe Harbor Provisions

In order to enjoy the benefits of the safe-harbor provisions, a Provider must comply with a few administrative requirements:

  1. Designate a copyright take-down agent to receive DMCA takedown notices.

In order to designate an agent, a Provider must create an account, provide some basic information (the Provider’s legal name, alternatives names for the Provider, the name or title of the Provider’s agent designated to receive infringement claim notices, and related contact information) and pay a filing fee (currently $6 to designate an agent, or amend or resubmit a designation, for an unlimited number of alternative names, websites, etc. for the Provider). The U.S. Copyright Office maintains an official list of designated agents, which allows a person who believes his or her work is being infringed to quickly send a takedown notice.

  1. Adopt a copyright infringement policy and notify site users.

The Provider must publish a statement on its website to provide notice to the site users of its copyright infringement policies, the consequences of repeated infringing activity, and advising users of the takedown agent’s contact information. Many people include a DMCA policy in their terms of service, but it may also be placed in a separate document.

  1. Watch for and properly comply with any notice of claimed infringement received.

A person claiming infringement must provide the Provider a written notice that substantially meets the following requirements:

  • A detailed description of the copyrighted work(s) allegedly being infringed;
  • A description (such as the subdomain link) of the location on the site where the   allegedly infringing content appears reasonably sufficient to permit the Provider to locate the material;
  • The claimant’s contact information, including name, address, telephone number, and, if available, email address;
  • A statement that the claimant has a good faith belief that the allegedly infringing use is not authorized by the claimant as the copyright owner, by the claimant’s agent, or by law;
  • A statement affirming that, under penalty of perjury, the information in the notice is accurate and that the claimant is, or is authorized to act on behalf of, the copyright owner; and
  • A physical or electronic signature of the copyright owner or someone authorized on the owner’s behalf to assert infringement of copyright and to submit the statement.

Remember that the DMCA protects only against copyright infringement, not against other types of accused wrongdoing. Therefore, a Provider must be careful to make sure any notice it receives alleges a copyright infringement and not some other type of wrong doing.

Also note that not all cease and desist letters or takedown notices will be proper, and a Provider is not under a legal obligation to comply with notices that do not substantially meet the above requirements.

If a takedown notice does not meet the requirements, a Provider should respond to the party who submitted the takedown notice, state that the notice does not comply with the DMCA requirements, and inform the complainant that he may resubmit a takedown notice that substantially complies with the DMCA requirements.

If a takedown notice does meet the requirements, a Provider should promptly:

  1. remove or disable access to the material that is claimed to be infringing;
  2. notify the complainant that the material has been removed; and
  3. notify the allegedly infringing party that the material has been removed so that he may file a counter-notice.

Often, a potentially offending user will not file a counter-notice, but if he or she does, a proper counter-notice must contain substantially the following information:

  • The alleged infringer’s name, address, phone number
  • Identification of the material and its location before removal
  • A statement under penalty of perjury that the material was removed by mistake or misidentification
  • The alleged infringer’s consent to local federal court jurisdiction, or if overseas, to an appropriate judicial body
  • A physical or electronic signature of the alleged infringer

If the counter-notice meets these specifications, the Provider should forward the counter-notice to the person who claimed infringement. That person must then file a lawsuit within 10 business days of the Provider’s notice to the complainant of the counter-notice; otherwise, the Provider should reinstate the disputed material within 10-14 business days after sending the counter-notice to the complainant.

While there is no requirement under the DMCA for a Provider to remove any material(s), the receipt of a valid takedown notice acts to give the Provider notice of the allegedly infringing activity, and therefore ineligible for limited liability. The Provider may then face liability for continuing to host the material.

Consult a qualified attorney if you are unsure of what the notice or demand letter is alleging or if you have questions about whether you must comply with a takedown notice or how you should comply with the takedown notice.

I didn’t register a DMCA takedown agent and now someone has filed a copyright infringement lawsuit against me. Am I out of luck?

In order to benefit from the safe harbor protections, a Provider must register a DMCA agent prior to an allegation of infringement which it wishes to defeat with the registration.

Even if a Provider has not registered a DMCA agent, it may still be able to defend against a claim on the merits of the alleged infringement. For example, if the amount of supposedly infringing material is small or is posted in a way meant to be educational and includes a citation for the material, you may have a defense under the fair use doctrine (although a fair use defense may not apply depending on the facts of each particular situation). Some cases also indicate that a defense may exist by asserting that infringing third-party posts are simply not the responsibility of the Provider. However, if a Provider has not registered under the DMCA, it will not be able to claim that it was unaware of the infringing activity or that it quickly removed the offending material.

Social Media Terms of Use – Is Your Brand Following the Rules?

Advertisements and promotions on social media channels are a daily occurrence.  In addition to complying with traditional advertising rules and regulations, brands need to comply with each social media channel’s Terms of Use and advertising-specific rules.

NBC recently ran afoul of Facebook’s rules when it posted a three-minute clip from the latest episode of Saturday Night Live that began with a five-second ad for Subway.  The rules state that “Third-party advertisements on Pages are prohibited, without our prior permission.”  In other words, video clips with ads not sold by Facebook are not allowed…unless a brand enters into an agreement similar to typographic-poster-design-i-have-read-and-accept-the-terms-and-conditions_GJfTZN_dFacebook’s deal with the NFL that allows brands to run ads after clips are shown and gives Facebook takes a piece of the ad revenue.  Earlier this year, Facebook launched Anthology, which connects brands and digital media publishers (like Funny or Die, The Onion and Oh My Disney) to create branded content to be targeted and optimized through Facebook.

The Terms of Use and related policies for each social media channel (Twitter, Instagram, Facebook, etc.) can differ greatly and tend to change frequently. The Terms of Use often contain guidelines or rules for advertising and hosting contests, sweepstakes and other promotions through the social media channel, ownership and (restrictions on) use of content, rules (and prohibitions) for using native functionality (e.g., “share on your Timeline to enter”), and other important information. Some social media channels, such as YouTube, require you to obtain written permission from them before you can post ads or product placements.

Before your brand posts content on a social media channel, be sure to check the rules on each channel to make sure you’re in compliance.

 

Endorsements and Testimonials: Are You Following the Rules?

Does your company use endorsements or testimonials to promote its products or services on its website or in its advertising or marketing materials?  Do you allow customers to post on your social media pages or website?  Are you a blogger who reviews products or services?

When most people hear the words endorsement or testimonial, they likely imagine a celebrity or expert getting paid big bucks to talk about an “amazing” product or service.  And, they would be right.

However, if you answered “yes” to any of the questions above, then you likely need to comply with the Endorsement and Testimonial Guides issued by the Federal Trade Commission (“FTC”).

Examples of messages that constitute endorsements include a film critic’s review of a movie used in Excellent result on survey on blackboardan advertisement for the film, a well-known athlete using a certain brand of sporting equipment in an ad for that brand, and a positive product review posted by a consumer on her personal blog where the consumer received the product free as part of a network marketing program.

The Guides reflect three basic truth-in-advertising principles:

  1. Endorsements must be truthful and not misleading;
  2. If the advertiser doesn’t have proof that the endorser’s experience represents what consumers will achieve by using the product, the ad must clearly and conspicuously disclose the generally expected results in the depicted circumstances; and
  3. If there’s a connection between the endorser and the marketer of the product that would affect how people evaluate the endorsement, it should be disclosed.

In other words, endorsements:

  1. Must reflect the honest experience or opinion of the endorser (there are different rules for consumer, celebrity and expert endorsements, as well as for endorsements by organizations);
  2. May not contain representations or claims that would be deceptive, or could not be substantiated, if the advertiser made them directly; and
  3. Must disclose any material connection between the person endorsing a product or service and the company selling the product or service that might materially affect the weight or credibility of the endorsement (employee, relative, paid, etc. – even small incentives, such as free product for bloggers to sample, must be disclosed).

Although the Guides don’t mandate the specific wording of disclosures, the Guides states that disclosures “must be clear and conspicuous on all devices and platforms that consumers may use to view the ad”…even if there are only 140 characters available for the entire message.  For example, paid spokespeople must disclose that they are sponsored (#sponsored or #ad) or explicitly mention that they are working with the brand/company (e.g., I’m teaming up with [brand/company] to do X) on social media platforms, such as Twitter.

If you are a brand owner, use caution before you follow, friend, like, or engage with a celebrity, third-party trademark or brand. Do not imply that there is an affiliation between the brand/company and the user/celebrity/trademark/etc….especially when such a relationship doesn’t exist. (Most consumers will assume there is a relationship between the brand/company and the user/celebrity/trademark.)

For more information, see the FTC’s FAQs about endorsements and testimonials.