Transcript 10 Things Every Marketing/Advertising Lawyer Should Know in

The 10 Marketing &
Advertising Issues
Every Lawyer
Should Know
Panel Presenters
Speakers:
• Tiffany Hall , Vice President, Senior Managing
Counsel, U.S. Markets at MasterCard
• Karen Ressmeyer, Associate General Counsel,
Marketing & Prime at Amazon
• Cynthia Jon-Ubabuco, Assistant General Counsel,
Director - Enterprise Privacy at Bank of America
Moderator:
• Danielle Ochs, Shareholder,
Ogletree Deakins, P.C.
The 10 Marketing / Advertising Issues Every Lawyer Should Know
#1
Intellectual Property
The Big Three
1. Copyright
o Works of authorship, such as text, music,
photos, and video.
2. Trademark
o Word, symbol, phrase that distinguishes
the source of a good or service.
3. Right of Publicity
o Right of an individual to control
use of his or her name or likeness.
the commercial
The 10 Marketing / Advertising Issues Every Lawyer Should Know
#2
Direct Mail
• No statutory opt out right or
requirement under existing
laws.
• “Nonmailable” matter.
• Company-specific “Do Not
Mail” representations.
The 10 Marketing / Advertising Issues Every Lawyer Should Know
#3
Telemarketing
• Myriad laws & regulations
o TCPA, TCFAPA, TSR, state
• Do not call
o Federal, state, company-specific
• Seller registration
• Dialing technology restrictions
• Consent requirements
• No abusive practices
• Disclosure requirements
The 10 Marketing / Advertising Issues Every Lawyer Should Know
#4
Contests & Sweepstakes
Regulated by federal and state laws
o Sweepstakes = Chance based
o Contests = Skill based
o Lottery = Prize + Chance + Consideration - Must
remove 1 of the 3 elements.
The 10 Marketing / Advertising Issues Every Lawyer Should Know
#5
Email Marketing
• Valuable marketing tool.
• Compliance triggered when brand /company
distributes emails to consumers.
• What is required?
o
o
o
o
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Headers must be clear and accurate
Subject lines must not be deceptive
The message must be clearly identified as an ad
The location of the sender should be noted in ad
Provide an opt out/unsubscribe option
• Ongoing Compliance
o Recipient list opt out maintenance
o Hiring third parties to handle email marketing for your business
The 10 Marketing / Advertising Issues Every Lawyer Should Know
#6
Text Message Marketing
• Autodialer Technology
o Use of to dial cell phones prohibited without prior express written consent
o Definition of prior express written consent
o What about on-demand fulfillment messages?
• CTIA Shortcode Guidelines
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What’s a shortcode?
Distinction between single & recurring program
Shortcode program requirements
Message content requirements
• Certain states impose greater restrictions on mobile
marketing messages.
The 10 Marketing / Advertising Issues Every Lawyer Should Know
#8
Social Media Endorsements
o Advertisers and endorsers/influencers
must disclose material connections
between them.
o Payment or other incentive (such as
money, a product, a gift, etc.)
= material connection.
o Can use #ad, #sponsored,
#sweepstakes, #advertisement to
disclose connection.
The 10 Marketing / Advertising Issues Every Lawyer Should Know
#7
Dot.Com Disclosures
Online disclosures should be clear & conspicuous:
• Proximity
o Information in close proximity to claim it qualifies?
• Placement
o
Placement of information in location where
consumers will be expected to look? (hyperlinks
& pop-up disclosures).
• Prominence
o Disclosure prominent enough to draw notice?
(e.g. size, color, graphics)
• Presentation
o Information presented in easy-to-understand
format that does not contradict other messages
presented with service.
The 10 Marketing / Advertising Issues Every Lawyer Should Know
#9
Highly Regulated Industries
• May be special rules or self regulatory guidelines for
advertising /marketing
• Financial Services
o Financial Industry Regulatory Authority
o SEC Advertising Rules
o Municipal Securities Rulemaking Board and
o Securities Investor Protection Corporation advertising rules
• Alcohol Beverage Industry
o DISCUS Guidelines for Advertising and Marketing
The 10 Marketing / Advertising Issues Every Lawyer Should Know
#10
Marketing & Ad Trends
• Joint marketing initiatives
o Not for profit organization and commercial entities (commercial co-venturer
laws)
• Use of “natural” for consumer products
• Celebrity endorsements
• Native advertising
The 10 Marketing / Advertising Issues Every Lawyer Should Know