enterprise toronto nov 2011 - marketing in web2-0 world

Enterprise TorontoLegal Issues – Marketing in a Web 2.0 World

Presented by:Rubsun Ho

[email protected] @rubsun

November 7, 2011

© 2011 Cognition LLP

What’s a legal session without a disclaimer?

The information provided in this presentation represents a general overview and understanding of intellectual property issues. It is not intended to be used as legal advice. Any application of the contents of this seminar in the context of a specific business should entail further legal consultation and consideration.


About Cognition

Founded in recognition of the fact that traditional legal services model was too expensive for startups and growth companies

Virtual model means lower overhead and lower rates

Former In House lawyers (e.g. Canadian Tire, RIM, Nortel, Sun Microsystems, etc.) who also practiced on Bay St (e.g. Gowlings, Stikemans, Oslers)

32 lawyers in Toronto & Ottawa


Marketing in a Web 2.0 World -Legal Issues to Watch Out For Email marketing and Anti-Spam Laws User Generated Reviews Marketing with Social Media Trademark Protection in an Online World

Email Marketing & Anti-Spam Laws



Email Marketing & Anti-Spam Laws Marketing: “An email newsletter would

be an ideal way to promote our products and connect with our customers. And its cheap.”

You: “Sounds good. How will we create a distribution list?”

Marketing: “Bah. There are a million places where we can collect email addresses. That’s why it’s so cost effective!”


Email Marketing & Anti-Spam Laws Bill C-28 – Canada’s Anti-Spam Legislation Expected to come into force early 2012 Things to pay attention to:

Opt-in requirement – recipient of electronic message must have consented to receiving it

Message must have unsubscribe mechanism – max 2 clicks

Will apply to text messages, twitter messages, and other electronic messages

Each message is supposed to contain contact info, including physical address and phone #


Email Marketing & Anti-Spam LawsExceptions to Opt-In RequirementExisting business relationship – active in the last few yearsMet in PersonRelevant messages to published email addresses so long as there is no statement that they do not want to receive messages.

Potential LiabilityAdministrative monetary penaltyPrivate right of action to apply to courtPotential class action threat

Email Marketing & Anti-Spam LawsTO DO’s:Potentially purge mailing lists of individuals who have not given consent or do not fall under an exceptionEnsure that there is a consent mechanism in gathering email addressesEnsure that there is an easy opt-out mechanism in managing your mailing lists.Set out policies and training programs to ensure that employees and agencies comply© 2011 Cognition LLP


User Generated Reviews



User generated content and reviews are becoming a common Web 2.0 marketing tool.Examples:Ecommerce sites like Canadian Tire & Amazon.com that allow users to rate and comment on specific productsReview sites such as Yelp, Homestars.com and TripAdvisorServices such as iTunes that encourage users to rate the apps on the siteFacebook pages where consumers can post comments about a company or its products and servicesBlog posts and related social media that allow for user comments and repliesCan be in the form of text or video



“Fake reviews prompt Belkin apology”

“Cornell software fingers fake online reviews”

“In a Race to Out-Rave, 5-Star Web Reviews Go for $5”

“TripAdvisor removes 'reviews you can trust' slogan

from its website”

“Judge Dismisses Yelp Class Action, Bolsters Web Publisher Immunity”



Legal Issues: CopyrightWhat if a user uploads copyrighted material in posting the review?The website operator may be liable as well as the user

Some defences are available in Canada (fair dealing) and the US (fair use) – e.g. criticism, research, news reporting, parody

Immunity from liability also available if website is merely a conduit and is unaware of offending content and removes the content upon becoming aware of it.

In the US, there are specific notice and take down provisions



Legal Issues: DefamationWhat if a user uploads materials or comments that are defamatory to another individual?For a defamation claim to succeed, there must be “publication”, which can occur over the InternetAs a website operator, you may be considered to be the “publisher” of the defamatory material

A very recent Canadian case held that providing a hyperlink to defamatory material does not constitute publishing that material

Generally, in the US, a website operator is not liable for a third party’s defamatory postings.



Legal Issues: False ReviewsWhat if a user posts fake reviews to pump a product or service?What if a company pays a blogger or website to promote its products?

There are general competition laws that prohibit deceptive commercial practices and false or misleading representationsAdvertising guidelines and codes of conduct provide that material connections between endorsers of a product and the manufacturer of the product should be disclosed.Given the ubiquity of the Internet, your web marketing programs may be subject to guidelines of multiple jurisdictions



TO DO’s:Ensure that your terms and conditions prohibit posting of copyright and/or defamatory materialsPut in a proper regime for dealing with copyright or defamation complaints and taking down offending contentAdhere to these terms and policies rigorouslyDo not actively promote or create conditions that promote copyright infringement or posting of defamatory materialDo not post fake reviews!!If you are posting reviews or using review sites to promote your products, ensure that any material connections, payments or free samples/services are disclosed


Social Media Marketing


Twitter / YouTube/ Facebook / Blogs / Podcasts / LinkedIn / Yelp / etc. / etc.

Hundreds of spontaneous, individualistic, high volume messages about your brand are being

distributed every day



How do you maintain trust and goodwill among your clients and customers?Be wary of copyright infringement, potential defamation, violation of advertising guidelinesWatch for brand-squatting – others using your brand as a handle on Twitter or registering the subdomain on FacebookEducate your marketing department & employees on what is acceptable when interacting on social media



TO DOsClaim your brands on social media sites (@yourbrand, www.facebook.com/yourbrand)Institute a comprehensive social media policyHave someone review and implement FTC endorsement guidelinesReview DMCAMonitor Social Media Networks



ResourcesFTC Endorsement Guidelineshttp://www.ftc.gov/multimedia/video/business/endorsement-guides.shtm

Word of Mouth Marketing Association:http://womma.org/about/

Best practices for social media policieshttp://bit.ly/99kHPC


Trademark Protection in an Online WorldTrademarks: words, logos or symbols that identify your products or services and distinguish them from those of others.


Trademark Protection in an Online WorldWhere your trademarks be at risk:Brand squatting (Twitter handles, vanity url’s)Fan pagesGripe pages.xxx top level domains (e.g. www.yourbrand.xxx)Competitors using your trademarks for keyword advertising© 2011 Cognition LLP

Trademark Protection in an Online WorldTO DOs:Register twitter handles & vanity URLs for your company name and product/brand namesRegister all top-level domainsFamiliarize yourself with .xxx domain processMonitor social media sites (e.g. Google alerts)Monitor keyword advertising (Google, LinkedIn)


Trademark Protection in an Online WorldTO DOs:If there are offenders:

Negotiate with any known offenders (perhaps engage them)

Follow social media site’s infringement policies

Send cease and desist letter


Thank you.www.cognitionllp.com

Rubsun [email protected], ext. 102 rubsunho @rubsun


Copyright

Copyright is a form of protection allowing the owner of the rights in a work to prevent others from copying, displaying or performing the work.

The work must be original. Absent a contractual arrangement, the author

owns the copyright (an employer is deemed the author of any work created by an employee)

Registration is not necessary, but can be helpful. Use of copyright notice not necessary but helpful:

(C) [Year of first publication] [Owner]


Copyright

Copyright doesn’t protect the idea, but the expression of the idea.

Open source software is still subject to copyright and must be licensed

Any music and images used for promotional purposes is likely subject to copyright and must be licensed.

Century 21 Canada Limited Partnership v. Rogers Communications Inc. – Zoocasa found liable for scraping content from Century 21 website and reproducing it

enterprise toronto nov 2011 - marketing in web2-0 world

Business

online reviews

false reviews

user posts fake reviews

email addresses

star web reviews

marketing tool

email newsletter

world legal issues