Online Marketing Law: What Influencers and Marketers Need to Know

Jan 27, 2020

online marketing law guide for influencers and marketers - picture accompanimentAre your online advertising efforts compliant? Here’s a quick online marketing legal primer.

The Lanham Act: Don’t Lie

The Lanham Act primarily addresses trademark law, but it also forbids “false and misleading description of fact, or misleading representation of fact, which […] in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities.” (15 U.S.C. § 1125(a)).

Or, plainly stated: Lying in advertisements is against the law.

Even if a statement isn’t demonstrably false, just misleading, it can invite legal action.

The Federal Trade Commission: Nation’s Consumer Watchdog

The Federal Trade Commission is the country’s consumer watchdog responsible for enforcing truth-in-advertising standards. Over the years, the commission has produced several guides detailing what is and isn’t acceptable when it comes to advertising and promotions — both online and off. The F.T.C. derives its authority, primarily, under Title 15 of the United States Code, which includes provisions laid out in:

  1. The Federal Trade Commission Act
  2. Clayton Antitrust Act
  3. Sherman Antitrust Act
  4. Securities Exchange Act of 1934
  5. Consumer Product Safety Act
  6. CAN-SPAM Act

When distilled, the commission’s rules are fairly straight forward:

  1. Factual statements should be backed by studies;
  2. Disclosure any material relationships in testimonials or reviews is a must;
  3. Don’t trick consumers into action (like a monthly subscription) without express consent.

Additionally, advertising claims must:

  1. Not be deceptive to a reasonable consumer;
  2. Be substantiated — especially ads related to health, safety, or performance.

If you fail to follow these rules, you may find yourself in trouble with the Federal Trade Commission.

Businesses can sue other companies directly for truth-in-advertising violations. Consumers, however, must register their complaints with the F.T.C. or state equivalent. If authorities see merit in your case, they’ll open an investigation, and if warranted, file a lawsuit against the company on consumers’ behalf.

Consumers have another option for truth-in-advertising justice: state-level class actions. In recent years, many of these cases involve “green marketing” claims.

Rights of Publicity

Marketers must also be mindful of “rights of publicity” regulations codified in 15 U.S.C. § 1125(a). The statute disallows for unauthorized use of a person’s image, name, or likeness in commercial advertising, including promotions on social media platforms.

The golden rule: Get permission before using someone’s image or name.

Pay-Per-Click Advertising Rules

Is it OK to include your competitors trademark in your pay per click advertising? In many instances, it’s OK to do so. Authorities don’t consider buying competitors’ names as keywords a violation of trademark law because it isn’t confusing to consumers.

Connect with An Online Marketing Lawyer

The Gordon Law Group works with freelancers and businesses on all manners of digital marketing compliance. We’ve defended clients against the F.T.C. and won. Additionally, we’ll make sure you’re operating on the right side of the law before the F.T.C. and other state and international regulators come knocking.

Give us a call and discover why our clients rate us 10 out of 10.

Contact Gordon Law Group

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