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Blog

Top 10 Best Practices for Keeping Social Media Ads Legal

September 9, 2014

Blog

Top 10 Best Practices for Keeping Social Media Ads Legal

September 9, 2014

Back to Fish's Trademark and Copyright Blog

 

It is no secret that social media is important to marketing your business.  In 2013, spending on social media ads in the United States was $6.2 billion, accounting for nearly 14% of all online advertising.  It is low cost, and has both a broad reach and a targeted focus, allowing brand owners to interact with an infinite number of consumers in real time, and consumers to share ads with their friends and colleagues in a way traditional advertising cannot match.

While social-media advertising has many benefits, it also raises a number of new legal challenges that you should consider carefully to both promote and protect your brand and reputation.

  1. Consider right of publicity laws. Promoting your product or service using # celebrity is a strategy you should avoid, especially considering the damages the celebrity could seek.
  2. Read the Terms of Service for each social-media platform you use. If a platform provides more rights than traditional law, your options for advertising may be broader. An example is Twitter’s Terms of Service, which provide that a worldwide, non-exclusive, and royalty-free license is granted to Twitter by the user as a result of the user’s post or Tweet
  3. Hashtags can be registered as trademarks, but must be used to identify your product or service, just like any other trademark. Using #trademark to start a conversation on social media will not constitute valid use for purposes of registration
  4. No one can claim exclusive rights to the “#” symbol, given that it’s likely generic, much like the “.com” top-level domain name
  5. Assess risk when using hashtags. Knowing how aggressive a company is in enforcing its trademark rights, and how far it is willing to go to protect them, is an important part of assessing whether the risk of using a #trademark is manageable to your business
  6. Be proactive in registering and controlling your social media accounts. You should establish your rights to a username before someone else does.
  7. Be honest. If you discover you have infringed someone else’s rights on social media, immediate and apologetic action may be your best response.
  8. Know the rules! Social media is a great way to engage followers in contests that promote your brand, but there are rules. When running a campaign, companies should include the word “contest” in their hashtags to be safe.
  9. Be prepared for negative comments. A social-media campaign that goes viral is a marketer’s dream, but a viral campaign could backfire. Have contingencies in place about how to handle any critics.
  10. When in doubt, follow traditional rules for advertising and confirm that your company is complying.

For more information on social media advertising, watch Fish’s Social Media Advertising: The Legal Challenges of Marketing in a #HASHTAG World webinar replay.

9/18/14 Update: I recently published an article in Law360 on this topic with my colleague, Nancy Ly.  It can be read in full here: Advertising on Social Media: How to Avoid Legal Problems

Related Tags

copyright
trademark
social media
advertising
right of publicity

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