In Hot Water?

Take a closer look at your marketing materials, or you may get burned.
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This story appears in the September 2004 issue of Entrepreneur. Subscribe »

Do you promote client testimonials on your Web site, overnight delivery in banner ads, or other companies' trademarks in newsletters? These techniques aren't illegal, but the way they're used could get you into legal trouble.

Today's hot buttons in Internet marketing law include copyright usage, privacy rights, trademark usage and order fulfillment, according to Douglas Wood, a partner of New York City law firm Reed Smith Hall Dickler and author of Please Be Ad-Vised: The Legal Reference Guide for the Advertising Executive.

"The rise in Internet fraud and unethical marketing practices is creating more aggressive legal action to protect consumers," says Wood. "Companies are also more vigorously protecting their brands online. More than ever, responsible Internet marketers need to make sure they're following the law."

Wood offers the following Internet marketing guidelines:

  • Copyright usage: Online information isn't free to use. And crediting the original source doesn't necessarily prevent a charge of copyright infringement. While short quotes are permitted, it's best to ask for approval and any data-use requirements. Fortunately, many organizations are thrilled to be referenced and will gladly give permission.
  • Privacy rights: Client testimonials and photos aren't fair game either. "Individuals have a right to privacy, and their names or images cannot be used for advertising purposes without their written consent," advises Wood. "For example, an event planner can't use a photograph taken at the event that shows the client or those who attended the event. Get written approval."
  • Trademark usage: If you're a company's authorized reseller or affiliate, you'll likely use their trademarks in your marketing campaigns. However, you should avoid using trademarks in a manner that may dilute the integrity of the mark. For example, Kleenex is a brand of tissue-it's not a synonym for tissue.

Competitors who use a trademark owner's marks and confuse consumers are at risk of trademark infringement and possibly a lawsuit. If you clearly compare your product to a competitor's, that's legal-provided the comparison is truthful. However, redirecting your competitor's consumers to your site without clarifying that you're not the trademark owner is a big mistake.

  • Order fulfillment: Marketers who advertise fast or overnight delivery and then fail to deliver can get slapped with fines in the hundreds of thousands of dollars. Wood warns that the law requires delivery within 30 days if no time frame is noted. Many marketers promise delivery in eight weeks, which generally gives them plenty of time to fulfill the order.

Re-evaluate these techniques, if you're using them. Also consider reviewing the marketing tactics of your partners and competitors to ensure your company is protected from their efforts as well. Legal sites such as Adlaw, Adlaw by Request, and FindLaw are helpful resources.

Speaker and freelance writer Catherine Seda owns an Internet marketing agency and is author of Search Engine Advertising.

Edition: July 2017

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