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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 o 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 o o o o 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