Repost from LAW À LA MODE, Issue 13 – April 2014

By Ann K. Ford and James “Bink” Stewart (Washington D.C.) 

The rise in popularity of social networking websites and blogs has extended the reach of a single consumer’s opinion about a brand or its products or services. In fact, prior to purchasing goods or services, consumers frequently review what other consumers have said about the brand or its products or services online. Given the power of consumer testimonials, savvy brands have explored various means of incentivizing positive consumer conversation about their brand online or explored ways to produce content which mimics positive consumer conversation.


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Reposted from DLA Piper’s IPT Italy Blog

By Sara Balice

After having debated about wearable technologies, special rules for foreign franchisors in Italy and 3D Printers à la mode, in this fourth post of the fashion-dedicated series, celebrating the Milan fashion week, we will discuss about the new frontier of the fashion industry marketing communication: social media.

We are living in a “social” world – to paraphrase that popular song of the 80s. And the fashion industry is increasingly adopting social media as a marketing platform to reach their customers online and to promote their brands.

But is it all safe or are there legal risks to be considered?

For example, one of the hottest topic is whether a fashion company, administering a page in a social network, a blog or a forum where customers can share opinions and comment e.g. on the latest collection, is liable in case such comments are offensive or infringe third party’s right. That is to say: is a moderation necessary?


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By James Stewart

 

IMPACT and the National Bar Association has named Radiance Harris one of its “Nation’s Best Advocates – 40 Lawyers Under 40.”  Radiance is an associate in the Trademark, Copyright, and Media practice group in Washington, D.C., as well as the manager for the firm’s premier intellectual property blog, Re:Marks on Copyright and Trademark.  This honor recognizes talented individuals, ages 40 and under, within the African American legal community who have achieved prominence and distinction, both professionally and philanthropically.  Selected nominees represent a cross-section of legal professionals: solo practitioners, government lawyers, judges, academics, corporate counsel, young elected officials, and lawyers using their juris doctor in innovative ways. 



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Repost from E-Commerce and Privacy Alert

By Scott W. Pink

On March 12, 2013, the Federal Trade Commission issued its long-awaited update to its 2000 guidance on disclosures in online marketing and advertising.

The guidance, entitled .com Disclosures: How to Make Effective Disclosures in Digital Advertising, not only reaffirms many of the FTC’s longstanding principles for effective online disclosures, but also provides guidance as to how those principles will be applied to new technologies that have emerged since 2000, such as mobile phones and tablets with more limited space, banner ads and multimedia messaging, and social media platforms such as Facebook and Twitter.

The FTC has broad powers under Section 5 of the FTC Act to protect consumers from “unfair and deceptive acts or practices.”i Under the FTC Act, the FTC has long required effective disclosures for claims that would otherwise be deceptive or misleading without them. .com Disclosures is designed to help businesses comply with the FTC Act by providing examples and direction on how to avoid unfair and deceptive practices through appropriate disclosures in their online and mobile marketing.


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By James Stewart

Earlier this month, Radiance Harris and James Stewart attended a roundtable on trademark protection in social media.  The event was hosted by the International Trademark Association (INTA) to create a forum for practitioners to share their experiences in this rapidly evolving area.  This is a multipart series that will discuss potential pitfalls, enforcement mechanisms for brand protection, and strategic tips for engaging in social media.

Practitioners agree that social media is no longer a luxury for “early adopters” or “hip” brands, but a necessity for brands to leverage bilateral communication with consumers, thought leaders, and the press.  If a brand does not have an active presence in social media, a user may create a presence for the brand.  Sometimes these user-generated accounts can adopt a laudatory tone and engage consumers better than the brand could have envisioned engaging consumers.  These accounts can grow to attract many thousands of fans.  However, all too often practitioners have seen brands take an overly cautious stance and become the subject of a dreaded “smear account” (i.e. www.yourbrandsucks.com), in which the negative aspects of a brand or consumer experiences with a brand are highlighted.  

These extremes aside, brand owners work hard to develop compelling intellectual property that uniquely resonates with consumers in a uniform and cohesive way.  Even if a social media presence created for a brand does not adopt a negative stance, does it conform to the brand approved aesthetic?  Are the correct logos, fonts, and colors used?  If they are not, or worse, if the creator has a poor experience with the brand and the tone of the page turns negative, the brand does not have control or ownership of the page or the immediate ability to take control of the message.  The brand may scramble to create its own “official” account to commence damage control, but many times this account will grow at a much slower rate than the rogue account.  Often by the time the brand has come up with this alternative account, the rogue account has grown and an online multichannel social movement has come to life. 


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By Kathryn Purcell-Hennessy (Brisbane, Australia)

Introduction

Internet use in Australia is widespread, with the Australian Bureau of Statistics reporting that in 2010-11 (the latest figures available), more than 50% of Australians aged between 15 and 34 created online content and downloaded videos, movies or music. More than 68% of Australians in those age brackets listened to music or watched videos or movies online and over 75% used the Internet for social media and online gaming in the same period. The Internet hosts increasing volumes of user-generated content, and encourages use of copyright materials in emerging ways, which may infringe copyright.


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Companies are becoming increasingly innovative in promoting and conducting contests and sweepstakes via social media sites such as Facebook, Twitter, Pinterest, and Instagram.  However, companies engaging in social media contests or sweepstakes must ensure that their promotions are in compliance with federal and states laws as well as the specific platform guidelines, and be particularly careful not to inadvertently organize their promotions as an illegal lottery.  Avoiding the creation of an illegal lottery is one of the biggest challenges of organizing a social media promotion.


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