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Feb. 2 — There were a dozen penalties between the New England Patriots and the Seattle Seahawks during the Feb. 1 Super Bowl but none apparently were committed by social media advertisers working the sidelines at the nation's most popular sporting event.
Social media marketing attorneys invited by Bloomberg BNA to play Monday Morning Quarterback following the big game said that they saw little evidence of social media legal trouble. Common social media missteps include trademark infringement, failure to disclose a material connection between the brand and the endorser, and unauthorized suggestions of third party-sponsorship.
Joseph Lewczak, Davis & Gilbert LLP, New York, told Bloomberg BNA Feb. 2 that he did not see any legal compliance issues during the Super Bowl. Large brands are aware of the stakes for Super Bowl advertising: high exposure carries heightened legal risks.
Brands are aware that the National Football League is hyper-aggressive in enforcing its trademark rights in the Super Bowl and ensuring that its sponsorship money is safe, Lewczak said. Brand marketers are going to be very cautious to ensure that they are not infringing upon any of NFL's trademarks, he said. They have also been increasingly cautious with regard to potential legal claims from other contributors to the event.
Lewczak said that he saw brands frequently commenting on each other's commercials, but nothing was done in a bad way. The back and forth commenting might have been authorized by backroom deals, which are of course not illegal, he said.
Lewczak said that he didn't see any legal issues with the Twitter campaign, #likeaboy, a Twitter response to Always' Like A Girl campaign to inspire people to use the phrase “like a girl” in a positive manner. Lewczak said that individuals' sarcastic remarks about the campaign are protected by the First Amendment. However, he said, a competitor of Always commenting on the campaign might raise trademark infringement concerns.
Lewczak said that McDonald's might have created a potential legal issue in its Super Bowl giveaway with regard to third party sponsors by offering prizes to Twitter users who retweeted its comments on each commercial, but it is likely protected from liability because it followed the proper endorsement disclosure requirements.
Stacy Marcus, Reed Smith LLP, New York, told Bloomberg BNA Feb. 2. that a commercial by domain name registrar GoDaddy LLC was pulled due solely due to policy issues — it was found offensive by animal rights activists.
Lewczak and Marcus said that they did not see anything related to celebrity endorsements or brands referring to celebrities to advertise their products. Nevertheless, Marcus said, celebrity endorsements are a growing issue in high profile events such as the Super Bowl.
As for trouble from the federal government, Marcus said the Federal Trade Commission will take time to investigate any possible consumer protection concerns, a process that may not become publicly known for months.
“The FTC monitors advertising of all types to ensure that it is truthful and not misleading, and we will be watching on Sunday,” Mary Engle, Associate Director for Advertising Practices at the FTC, told Bloomberg BNA Jan. 30.
McDonald's was careful to ensure its Super Bowl giveaway followed social media requirements. After each commercial, McDonald's posted on its Twitter account that viewers have a chance to win a prize from the advertised brand by retweeting its post. For example, McDonald's tweeted after the Doritos commercial, “Lovin’ that @Doritos ad. RT and you could win airline tickets and a suitcase full of Doritos. Baby not included.”
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McDonald's was playing off of what was shown in the commercials to promote its own company, Lewczak said. He said that he is doubtful that McDonald's received permission from all of these brands, but it is possible. Lewczak said that he anticipates letters will be sent to McDonald's in the near future, but he also does not think that McDonald's will face legal repercussions.
McDonald's is sophisticated in how they handle social media marketing, they have plenty of lawyers, and they understand the risks, Lewczak said. He said that McDonald's took all of the necessary precautions. The giveaway closed midnight last night, so it was a very short time frame, he said. The giveaway had specific provisions, and McDonald's properly disclosed that it was in no way affiliated with advertisers of the Super Bowl, he said.
Even if a company does send McDonald's a cease and desist letter, McDonald's response will likely be that “we disagree, the promotion is over, and we don't think the consumers were ever confused about the endorsements,” Lewczak said. Due to the quick duration of the giveaway and the disclosure of the endorsement, McDonald's is likely protected from liability, he said.
GoDaddy received harsh criticism from animal rights activists and the general public for a commercial by GoDaddy Operating Company LLC that parodied Budweiser's “Lost Dog” ad, which aired before the Super Bowl. In GoDaddy's commercial, a puppy found its way back to its owner, only for it to be shipped out to an online purchaser. “I'm so glad you made it home! Because I just sold you on this website I built with GoDaddy,” the owner in the commercial said. Critics of the commercial accused GoDaddy of promoting puppy mills.
GoDaddy pulled the commercial after the immense amount of criticism, and had twenty four hours to create a substitute ad, Marcus said. She said that a change.org petition, which had over 42,000 supporters, helped to remove the commercial.
The online backlash really demonstrated the power of social media, Marcus said.
GoDaddy's aborted campaign did not present legal compliance issues, Marcus said. Budweiser could potentially bring a claim of copyright infringement for copying its commercial, she said, but GoDaddy would be able to assert a defense of fair use for the parody.
Lewczak said that he didn't see anything related to celebrity endorsements or brands referring to celebrities to advertise their products. He mentioned an instance during last year's Grammys, where Arby's took an opportunity to use Pharrell Williams' generic cowboy hat, which resembled the Arby's logo, to promote itself. Arby's tweeted to Williams, “Hey @Pharrell, can we have our hat back? #GRAMMYs.”
Arby's did not get into legal trouble for this tweet because it didn't suggest that Williams was endorsing the Arby's brand. Arby's did not overstep its boundaries in marketing their brand through this high profile event, Lewczak said.
Lewczak said that there is a trend of brands getting a better handle on how to utilize social media in this way, keeping in mind the potential legal risks. Brands are also exploring ways to use celebrity endorsers. In this regard, Lewczak said, brands should consider whether:
Lewzcak said that reviewing these factors can minimize potential legal risks.
Endorsement disclosure is a growing issue on social media during high profile events such as the Super Bowl, Marcus said. Celebrities tend to be the biggest offenders, she said. No one really has a good way to provide a disclosure when promoting a brand online, and although the Federal Trade Commission has said that a disclosure is required and recommends where and how it should be placed, it has not said how they should be expressed, Marcus said.
She said that celebrities do not want to use the hashtag #paid after expressing satisfaction with a brand over Twitter. It makes the celebrity's post feel inauthentic, she said, but no one has a better way of doing it. There needs to be a way to have the disclosure be an organic part of the post in each social media platform, Marcus said.
Attorneys remind their clients of the disclosure requirement and the ramifications for not including one, but there have not been enough cases to show the likelihood of getting into trouble for it, she said.
“While many celebrities and other influencers regularly post about products and brands, figuring out who is violating the FTC testimonial and endorsement guide is like trying to prove a negative,” Marcus said, “We only know if they've failed to make the disclosure if we know for certain that a material connection exists, but it is impossible to know without firsthand knowledge of any potential deal.”
The FTC's endorsement guidelines require the disclosure of a material connection between an advertiser and an endorser when such connection is not otherwise apparent from the context of the endorsement. Section 5 of the Federal Trade Commission Act provides, “When there exists a connection between the endorser and the seller of the advertised product that might materially affect the weight or credibility of the endorsement (i.e., the connection is not reasonably expected by the audience), such connection must be fully disclosed.”
A material connection includes receiving payments or free products in exchange for promoting a product or service, in which consumers would not otherwise be aware of, FTC Public Affairs Specialist Elizabeth Lordan told Bloomberg BNA Jan. 30. The endorsement guidelines apply to advertising claims on all types of media, including Twitter, on TV, or in the newspaper, Lordan said.
The FTC updated its guidance for digital advertisers in March 2013, the Dotcom Disclosures Guidance, which provides further guidance on how to make effective disclosures on online platforms as social media marketing rises (18 ECLR 685, 4/10/13). This updated guidance provides that in order to make a clear and conspicuous disclosure of a material connection, endorsers should:
The FTC provides further advice on the revised endorsement guidelines on its website regarding how to make the disclosure. The FTC says that it does not mandate the specific wording of disclosures, It provides that there is no special language that must be used to make the disclosure, as long as it effectively communicates to the reader that you are not an ordinary consumer of the product or service you are advertising.
The FTC suggests using the hashtag #paid or #ad on Twitter to indicate that you are sponsoring the product or service.
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