Tag archives: advertising

Testing and trade secrets: Marketing may eliminate rights

Photo of Sean Patrick McGinley (US)By Sean Patrick McGinley (US) on Posted in Privacy

Sharing information and reaching consumers is even easier today thanks to the prevalence of social media. However, sharing certain information with the public can result in the removal of trade secret protections.

According to a recent federal court decision, posting photographs of testing equipment and sharing information about testing procedures are two examples of where protection for potential trade secrets was lost. (S&G Labs Hawaii v. Graves).

Before sharing company information on social media to attract more customers, always consider the need to protect that information from competitor access.

Trade secrets and their application to advertising

Trade secrets … Continue Reading

The do’s and don’ts of doing it for the ‘gram: Limiting deceptive marketing risks on social media

Photo of Erin Brown (CA)By Erin Brown (CA) on Posted in General

Social media influencer marketing that misleads the public is on the Canadian Competition Bureau’s (the Bureau’s) list of key priorities for the foreseeable future. Brands and marketing agencies that work with influencers (as well as influencers themselves) should abide by best practices to reduce the risks of getting wrapped up in a Bureau investigation for misleading advertising.    You can read the full client briefing here.

 … Continue Reading

FTC, celebrity influencers, and health claims

Photo of Susan Ross (US)By Susan Ross (US) on Posted in General

As the world struggles to move forward, our thoughts and support are with our readers and we hope for their good health and improving situations.

Today’s post involves an FTC settlement that was announced just as New York was going into “lockdown” mode and so we wanted to make sure it did not escape your attention. In March of 2020, the U.S. Federal Trade Commission (FTC) announced a settlement of its federal court complaint against a company that the FTC alleged made unsubstantiated health claims for its teas and skincare products—and used celebrity social media influencers whose endorsements did not … Continue Reading

Wearing out privacy: wearable technology revolutionizing social media marketing

Photo of Daniel Daniele (CA)By Daniel Daniele (CA) on Posted in Privacy

Social media has made sharing personal and professional updates easy and, in most cases, highly targeted. Facebook, Instagram, and Twitter, as well as the proliferation of new social media platforms have created a window into the lives of those who are active on these platforms. One of the biggest tensions created by social media is that, while businesses are constantly looking for metrics and strategies that will enable them to advertise their content to the user at the most opportune moment, individuals seek to cut down on their social media consumption. The rise of wearable technology (e.g. smartwatches or technology-embedded … Continue Reading

Pixels + Social Media Influencers – Authenticity = Virtual Influencers

Photo of Kajon Pompey (US)By Kajon Pompey (US) on Posted in General

Social media influencer marketing has had a significant impact in the way brands reach consumers worldwide. Social media influencers are very important to platforms such as YouTube and Instagram and even more so to brands. As independent contractors, social media influencers garner more outreach than any company’s advertising team could ever hope to accomplish. From engagements like brand awareness and product placement and “authentic reviews,” according to Business Insider, the influencer marketing industry is expected to be worth up to $15 billion by 2022—up from $8 billion in 2019. Influencers, once a niche group, are now everywhere—we can spot … Continue Reading

Deception sells: The current theme in the age of social media

Photo of Kajon Pompey (US)By Kajon Pompey (US) on Posted in Fraud

In this age of social media, companies and brands have faced countless criticisms for their lack of transparency, copyright infringements disguised in the form of “flattery or inspiration” and we can’t forget the many inclusivity flops.

Brands, including beauty brands, are now dedicating more of their marketing budgets to paying influencers for their “honest” reviews in hopes that they can convince the public to purchase their products. What’s more striking is that consumers are heavily relying on social media for help in determining where to place their value and money. With these stakes, some companies have turned to deceptive practices … Continue Reading

Social media and corporate executive responsibility

Photo of Susan Ross (US)By Susan Ross (US) on Posted in Litigation

Corporations that sell to consumers and are subject to consumer lawsuits commonly receive deposition demands for top executives. Corporations can frequently defeat these demands by showing that the executives did not participate or have control over the matter at issue. But a recent ruling from a federal trial court in California demonstrated how controlling social media content can help change that result, leaving a CEO as a defendant in a consumer class action alleging fraud and false advertising. (Kamal v. Eden Creamery, LLC, No. 18-cv-01298-BAS-AGS (S.D. Cal. June 26, 2019).)… Continue Reading

Monkeying around on social media could land you with a defamation suit

Photo of Caleb Segrest (US)By Caleb Segrest (US) on Posted in Defamation

As a wise person once said, truth often is stranger than fiction. The US Court of Appeals for the Fourth District of Texas (the “Appellate Court”) recently decided Hosseini v. Hansen, a bizarre case involving the intertwining of a tax preparation business, primate trainers and enthusiasts, and a defamation claim. Despite the unique factual circumstances, the case provided good general insight into social media use as it relates to defamation.… Continue Reading

Social media influencer advertising in Canada

Photo of Daniel Daniele (CA)By Daniel Daniele (CA) on Posted in General

Influencer marketing is increasing in popularity in Canada and can be an effective way to promote your brand. Influencers are online personalities that use social media to share their expertise and opinion about products or brands with their followers. In order to tap into the influencer’s network, businesses pay or otherwise compensate influencers to share content that features their products or brand. Influencer marketing comes in all shapes and sizes. For example, it includes a social media model promoting a certain brand of makeup or an athlete recommending a particular piece of workout gear. Recently, even the Government of Canada… Continue Reading

Social media influencers and “scraping”

Photo of Susan Ross (US)By Susan Ross (US) on Posted in Copyright

On February 7, 2019, a federal trial court in California ruled in favor of a social media influencer’s copyright, trademark, interference with contract, and right of publicity class action lawsuit and denied the defendant’s motion to dismiss. As a result, the social media influencer can proceed with their claims that the defendant website copied social media photos and information but removed the links used by the influencer to monetize social media pages. (Batra v POPSUGAR, Inc., No. 18-cv-03752-HSG (N.D. Cal. Feb. 7, 2019) (2019 WL 482492).… Continue Reading

Trademarks, social media and lessons learned

Photo of Susan Ross (US)By Susan Ross (US) on Posted in Trademark

On June 14, 2018, a federal trial court in New York issued a decision relating to a restaurant owner’s claim that the restaurant manager was using the owner’s trademarks on social media in violation of the federal trademark law known as the Lanham Act. The trial court denied the owner’s claim, in a ruling that provides some useful lessons to anyone who licenses a trademark. (Thousand Island Park Corp. v. Welser, 5:18-CV-117 (N.D.N.Y. June 14, 2018 (2018 WL 29803231)).)… Continue Reading

Entering a new age of virtual reality

Photo of Daniel Daniele (CA)By Daniel Daniele (CA) on Posted in Privacy

Experiencing virtual reality

The line between the digital world and the physical world is becoming increasingly blurred as we enter an era of virtual reality (VR).  VR can be defined as a “computer technology that uses virtual reality headsets…to generate realistic images, sounds and other sensations that simulate a user’s physical presence in a virtual or imaginary environment.”  In other words, VR uses computers to create a virtual environment that feels as close to reality as possible.

VR will have a significant impact on social media. Instead of communicating through texts, pictures and videos, VR technology will allow … Continue Reading

Social Media Evidence and Pay-Per-View TV

Photo of Susan Ross (US)By Susan Ross (US) on Posted in Litigation

We have previously written about social media posts and advertisements being used as evidence in a variety of legal cases (most recently, a post relating to emojis).  A federal court in Pennsylvania recently used two social media advertisements—from a source the court could not identify—as evidence to support a finding of “willfulness” and to award 33% in enhanced damages.  (J&J Sports Productions, Inc. v. Ramsey, Civ. No. 17-1942 (E.D. Pa. Sept. 27, 2017) (2017 WL 4287200).)… Continue Reading

FTC and Social Media Influencer Endorsements

Photo of Susan Ross (US)By Susan Ross (US) on Posted in General

On September 7, 2017, the U.S. Federal Trade Commission (FTC) announced that it had entered into a proposed consent agreement with two individuals and their company that allegedly ran an online gaming community website that allowed users to gamble virtual currency.  According to the FTC complaint, the two individuals promoted the gaming site and not only failed to disclose their ownership interest in the site or that they were playing with company money, but they also paid other social media influencers between $2,500 and $55,000 to promote the site.

As we had previously written, in the Spring of 2017, … Continue Reading

How Animal Influencers Are Changing the Way Brands Advertise

Photo of Chandler Stephens (US)By Chandler Stephens (US) on Posted in General

At this point you are probably familiar with the world of social media influencers. You might follow several on Instagram, or maybe your company partners with them to promote its products. But have you realized that the most valuable influencers may not even be human? This post will focus on animal influencers – they are cute, they come in a variety of species, and they are being paid to advertise products via social media.

Why animals?

Aspiring animal influencers can rise from obscurity to fame in an instant – all it takes is one viral post. The demand for … Continue Reading

Stay safe on social media – New ACCC guidelines

Photo of Georgina Hey (AU)By Georgina Hey (AU) on Posted in General

Businesses shelling out big bucks for prime advertising space are used to paying close attention to content, for the sake of the bottom line as well as out of respect for consumer law. However, it may not feel as natural and cost-effective to apply the same scrutiny to an Instagram caption. Why invest the business resources when teenagers worldwide can master the art?

The Australian Competition and Consumer Commission (ACCC) has recently issued new social media guidelines for businesses which emphasise the answer repeatedly: as far as the regulator is concerned, businesses have the same responsibilities on social media as … Continue Reading

Advertising on the Internet – What Makes a Disclosure “Clear and Conspicuous”?

Photo of Mayura Noordyke (US)By Mayura Noordyke (US) on Posted in General

Increasingly, companies are turning to the internet and social media platforms to advertise their products, often by using native advertising or by providing incentives such as payments or free products to social media “influencers” (Instagrammers, Pinners, Bloggers and Vloggers, to name a few) in exchange for an endorsement.

As we have previously discussed, the FTC has issued Endorsement Guides that provide guidance on appropriate advertising on social media. The FTC has stated that advertising on social media platforms is subject to the same consumer protection laws that prohibit deceptive advertising and that advertising claims must be accompanied by “clear … Continue Reading

FDA Proposes New Research on Social Media Promotion of Prescription Drugs

Photo of Chandler Stephens (US)By Chandler Stephens (US) on Posted in General

The U.S. Food and Drug Administration (“FDA”) regulates the use of social media to disseminate information about prescription drugs and medical devices. Our blog previously covered the social media guidance released by the FDA in 2014, and a sampling of Warning and Untitled Letters that the FDA has issued to drug manufacturers advertising on Twitter, Facebook, and Tumblr.

Our firm sister blog, Health Law Pulse, covered last year’s controversy surrounding Kim Kardashian’s Instagram post that endorsed the morning sickness drug Diclegis® without including relevant risk information in the text of her post. After the manufacturer of Diclegis® received an FDA … Continue Reading

Who paid you to post that? Truth and Transparency in International Advertising

Photo of Karen Sie (CA)By Karen Sie (CA) on Posted in General

Social media personalities who have tweeted, grammed, Vine’d and snapped their way to stardom have no doubt caught the attention of businesses large and small. Much like how professional athletes and other celebrities are paid to endorse products, businesses and retailers have increasingly turned to recognized social media personalities (often called “influencers”) to recommend their products. Although social media influencers can get paid significant sums of money for product placement and rave reviews, sometimes the relationship with the company is not readily apparent to the public. Where the endorsement is not based on genuine user experience, this can have a … Continue Reading

Germany: Can you be sued for tweeting #Rio2016?

Photo of Sven Jacobs (DE)By Sven Jacobs (DE) on Posted in Trademark

The answer depends on who you are: For consumers there is little risk involved. Companies, however, did receive letters by the German Olympic Committee in recent weeks warning them about stealing intellectual property, similar to the letters send by the United States Olympic Committee. In particular Twitter accounts should not reference any Olympic results, share or re-tweet anything from the official Olympic account, or use official hashtags including #Rio2016 or #Team.… Continue Reading

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