Author Archives: Andrew Jaffe

Recently, I blogged about the FTC’s guide to endorsements and testimonials  (June 3, 2013, https://www.netlaws.us/blog/page/2/).  What may not have been clear is that these guidelines apply to all commercial endorsements including radio, television, magazine, newspaper or web sites; including blogs, forums and social networking sites.

The guidelines concerning the disclosure of material connections are certainly in response to the millions of blogs that have cropped up across the Internet.  Bloggers are expressing their opinions about anything and everything and the FTC is putting them on notice that they are being watched for deceptive practices.  As you will see, the guidelines require bloggers to inform the reader of any connections between the blogger and the product including if the blogger was given a free sample or money to try the product and report on its use.

A blog is merely a type of website that an author uses to express his opinions.  The author will usually post regular updates to express new opinions.  The guidelines are not specific to blogs and would apply to any website, or magazine article or television commercial for that matter.

Turning our attention to the FTC guidelines on testimonials and endorsements specifically, let’s start by defining testimonials and endorsements.  The FTC guidelines state that they intend to treat endorsements and testimonials identically, and the rules treat any testimonial as an endorsement.  I define an endorsement as a testimonial by a celebrity.

In the Guidelines, the FTC states that an endorsement means any advertising message that consumers are likely to believe reflects the opinions, beliefs, findings, or experiences of a party other than the sponsoring advertiser, even if the views expressed by that party are identical to those of the sponsoring advertiser. The party whose opinions, beliefs, findings, or experience the message appears to reflect will be called the endorser and may be an individual, group, or institution. Endorsements can still be used in Internet marketing, but only in accordance with the guidelines.

At the end of this lesson I have attached a link to the FTC’s Revised Endorsement and Testimonial Guides.  I summarize the guidelines below in a short and simple method, however, it would be worth your while to read and understand the full document. Further, the FTC Guide contains examples for each rule. The examples in this guide are excellent, and I strongly recommend you read the examples as they will give you a very good understanding of the rules. 

The guidelines require:

• Endorsements must reflect the honest opinions, findings, beliefs, or experience of the Endorser.
• An endorsement may not convey any representation that would be deceptive if made directly by the advertiser.
•  The endorser must have been a bona fide user of the product at the time the endorsement was given and must continue to use the product during the time the advertisement runs.
• Advertisers are subject to liability for false or unsubstantiated statements made through endorsements, or for failing to disclose material connections between themselves and their endorsers.
• Advertisers must possess and rely upon adequate substantiation, including, competent and reliable scientific evidence, to support claims made through endorsements in the same manner the advertiser would be required to do if it had made the representation directly.
• If the advertiser does not have substantiation that the endorser’s experience is representative of what consumers will generally achieve, the advertisement should clearly and conspicuously disclose the generally expected performance and the advertiser must possess and rely on adequate substantiation for that representation.
• Endorsers represented as experts must truly be an expert with an expert’s qualifications.
• Expert endorsers must exercise their expertise in evaluating the product they are endorsing.
• Connections or remuneration between the seller of the advertised product and the endorser must be fully disclosed.

Finally, as I promised: Please click here to go to the https://ftc.gov/os/2009/10/091005revisedendorsementguides.pdf

Trademarks protect a company’s reputation and good will and prevent consumers from being misled as to the origin or quality of a product. Trademark law often boils do to the question of whether or not a consumer would be confused as to the origin of the goods or service in question.  Recently, trademark law has become further embroiled with domain name issues.

WHAT IS A TRADEMARK?

A trademark includes any word, name, or symbol used in commerce to identify and distinguish the goods of one seller from goods sold by others, and to indicate the source of the goods. In short, a trademark is a brand name. (If a service provider wishes to brand their product it is called a Service Mark and enjoys the same protection as a Trademark.)

The law considers a trademark to be a form of intellectual property. Proprietary rights in relation to a trademark may be established through actual use in the marketplace, or through registration of the mark with the United States Patents and Trademarks Office (USPTO). There is no requirement to register a trademark, but federal registration has several advantages including notice to the public of the registrant’s claim of ownership of the mark, a legal presumption of ownership nationwide, and the exclusive right to use the mark on or in connection with the goods.

HOW ARE TRADEMARK RIGHTS ACQUIRED?

Rights to a trademark can be acquired in one of two ways: (1) by being the first to use the mark in commerce; or (2) by being the first to register the mark with the USPTO.

You do not need a lawyer to file an application with the USPTO for a registered trademark.  You may conduct a search free of charge on the USPTO website using the Trademark Electronic Search System at  https://tess2.uspto.gov/bin/gate.exe?f=login&p_lang=English&p_d=trmk . You may file your trademark application online using the Trademark Electronic Application System  https://www.uspto.gov/teas/index.html to fill out an application form and then submit the application directly to the PTO over the internet with payment by credit card.

HOW ARE TRADEMARK RIGHTS PROTECTED?

To protect a trademark through actual use requires the user to place a superscript TM after the Trademark ^TM.  The owner of a registered trademark uses the symbol ® to indicate a Registered Trademark^®.

Trademark owners may commence legal proceedings to prevent unauthorized use of their trademark under the Latham Act. While the level of protection for a registered trademark is greater than that of a common law trademark, any trademark owner may pursue their property rights and prevent the unauthorized use of their trademark by others. Factors affecting the owner’s rights include whether the trademark is registered, the similarity of the trademarks and the actual products, and whether the trademark is well known. The final test is always whether a consumer of the goods or services will be confused as to the identity of the source or origin.

Defendants in a trademark infringement suit can assert the affirmative defense of fair use. Fair use occurs when a descriptive mark is used in good faith for its primary, rather than secondary, meaning, and no consumer confusion is likely to result.

Courts can award damages in the form of both an injunction against further use of the trademark by the infringer and monetary compensation. An intention to deceive by an infringer will generally create higher damages.

HOW DOES TRADEMARK LAW PROTECT DOMAIN NAMES?

The domain name system was invented to allow internet users a way of accessing specific computers on the Internet through easily remembered names. Domain names have become a valuable property in today’s Internet economy. Consequently, trademark owners have been quick to use the courts when they feel others have taken domain names they are exclusively entitled to use.

In addition to existing trademark legislation, in 1999, congress passed the The Anticybersquatting Consumer Protection Act (ACPA) to protect trademark owners from acts of cyber piracy by those who have bad faith intent in using a domain name to profit from another’s trademark.

There is now over fifteen years of case law concerning ownership rights in domain names, much of which is extremely fact specific. It has not been easy for the court system to fit the cyber world into existing trademark law. However, once a court found a domain name registrant was acting in bad faith they found a reason to prevent the continued use of the domain by the registrant even if they had to create new trademark law reasons.

Recently, ICANN has developed a dispute resolution procedure as an alternative to filing suit for trademark owners. Again, whether the registrant acted in bad faith will be a large factor in the ultimate resolution.