Hot Legal Issues for Marketers Summer 2016

It’s August, and brands are heating up their summer campaigns and preparing for fall, Marketers tend to jump on prominent news stories and seek relevance by reacting to them. In so doing, they may run afoul of trademark laws or regulatory compliance issues. The season also brings retail challenges, as bricks and mortar stores try to sell off as much inventory as possible. Price claims in advertising also have legal consequences. Here are some “hot” legal advertising topics.

Go for the Gold?: The summer Olympic games are imminent, and so are Olympic-themed advertising campaigns. The International Olympic Committee and the United States Olympic Committee, however, are vigilant in enforcing their trademark rights. These rights extend to “Rio 2016”, the Olympic rings and flame and “Team USA.” The US Olympic Committee has actually prohibited retweeting Olympic-themed material. Take care in calendaring your tweets and in using Olympic-themed hashtags to stay clear of the USOC’s wrath.

Make Your Brand Great Again: Donald Trump applied for protection of “Make America Great Again” in 2012 as it related to political action committee services and fundraising. Since then, he also has applied to register the mark for a variety of goods and services, including sports and tote bags, backpacks, umbrellas, bumper stickers, clothing, campaign buttons, political campaign services, and various online journals and social networking services. For some of these goods, Trump purchased the pending application of another applicant. Since then, several individuals have tried to protect the mark in other categories, perhaps also hoping to sell their applications to Trump. (The USPTO has published a similar mark for opposition for lighters for smokers, withdrawing its initial rejection of the mark for similarity to Trump’s marks.) What does all this mean for marketers? It is tempting to use parodies of “Make America Great Again” in your marketing. Be certain to do a complete vetting of your campaign to ensure that you are comfortable asserting a parody defense to a claim of a trademark infringement from Trump.

Market for a Cause: After the horror of Orlando, brands may be tempted to fundraise for this cause. If you are contemplating charitable donations for any charity as part of your business plan, now is the time to learn about the legal requirements of being a “commercial co-venturer.” At least half of the states have commercial co-venturers laws within their charitable solicitations statutes. The goal of these statutes is to prevent the public from being deceived about the effect of their purchasing decisions on charitable contributions by the commercial sponsor. The Attorney General of each state enforces the CCV statutes through fines. Some statutes also authorize private rights of action, including class actions. To comply with the CCV laws, a brand may have to register, bond, file a contract with the charity, and make a variety of disclosures. (For more discussion about the CCV laws, click here.) If you decide to connect your brand with a charity, do not start promoting on social media without taking time for legal due diligence. Any marketing that indicates a portion of sales will go to the charity could trigger the CCV laws. Your attorney should work with marketing on the precise wording of your advertising copy on all platforms and help you determine if you need to comply with the CCV laws.

Prepare for Brexit: The markets are still sorting through the implications of Brexit, and we know that there are no immediately different steps needed to maintain your intellectual property in the EU or the UK. In the long run, we know that if the UK does actually separate from the EU, marketers who do business in England may need an additional level of trademark protection. If your EU protection is based on use in the UK alone, your trademark rights may be vulnerable to cancellation. Furthermore, trademark licensors that only specify the EU as a licensed area of use should look at their territory clauses to determine whether the UK should be listed separately. In addition, data protection and privacy policies for those companies who have a presence in the UK may also need updating to stay compliant. Maintain docketing to check into these issues as time goes by and we understand more about Brexit’s logistics and timeline.

Everyone loves a sale: As the summer days wane, many brands run sales featuring comparative advertising or seasonal pricing. Be aware that comparison pricing can be harmful or deceptive under certain circumstances. In addition, it is not a sale price if the goods are typically sold at that price year-round. We have seen an uptick in private litigation enforcing state laws that mimic standards at the federal level. Familiarize yourself with the FTC guides against deceptive pricing. These guides deal with retail price comparisons, former price comparisons, buy one get one free, and other types of pricing claims. Note that these guides are up for review in 2017, so now is the time to look at your pricing practices and try to anticipate the next wave of regulation. Also be aware that state attorneys general need not show actual harm to consumers. If they are feel your pricing practices have the capacity to mislead or are unfair, they may launch an investigation. Retailers should be considering carefully if there is a valid basis for the price they are advertising and remember that different states may have different requirements for disclosures and substantiation.