Enterprise toronto nov 2011 - marketing in web2-0 world

Enterprise Toronto Legal Issues – Marketing in a Web 2.0 World Presented by: Rubsun Ho [email_address] @rubsun November 7, 2011

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.
© 2011 Cognition LLP

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
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!”

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 #

Exceptions to Opt-In Requirement
Existing business relationship – active in the last few years
Met in Person
Relevant messages to published email addresses so long as there is no statement that they do not want to receive messages.
Potential Liability
Administrative monetary penalty
Private right of action to apply to court
Potential class action threat

TO DO’s:
Potentially purge mailing lists of individuals who have not given consent or do not fall under an exception
Ensure that there is a consent mechanism in gathering email addresses
Ensure 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

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 products
Review sites such as Yelp, Homestars.com and TripAdvisor
Services such as iTunes that encourage users to rate the apps on the site
Facebook pages where consumers can post comments about a company or its products and services
Blog posts and related social media that allow for user comments and replies
Can be in the form of text or video

“ Fake reviews prompt Belkin apology”
© 2011 Cognition LLP “ 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: Copyright
What 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: Defamation
What 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 Internet
As 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 Reviews
What 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 representations
Advertising 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 materials
Put in a proper regime for dealing with copyright or defamation complaints and taking down offending content
Adhere to these terms and policies rigorously
Do not actively promote or create conditions that promote copyright infringement or posting of defamatory material
Do 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 guidelines
Watch for brand-squatting – others using your brand as a handle on Twitter or registering the subdomain on Facebook
Educate your marketing department & employees on what is acceptable when interacting on social media

TO DOs
Claim your brands on social media sites (@yourbrand, www.facebook.com/yourbrand )
Institute a comprehensive social media policy
Have someone review and implement FTC endorsement guidelines
Review DMCA
Monitor Social Media Networks

Resources
FTC Endorsement Guidelines
http://www.ftc.gov/multimedia/video/business/endorsement-guides.shtm
Word of Mouth Marketing Association:
http://womma.org/about/
Best practices for social media policies
http://bit.ly/99kHPC

Trademarks: words, logos or symbols that identify your products or services and distinguish them from those of others.

Where your trademarks be at risk:
Brand squatting (Twitter handles, vanity url’s)
Fan pages
Gripe pages
.xxx top level domains (e.g. www.yourbrand.xxx )
Competitors using your trademarks for keyword advertising

TO DOs:
Register twitter handles & vanity URLs for your company name and product/brand names
Register all top-level domains
Familiarize yourself with .xxx domain process
Monitor social media sites (e.g. Google alerts)
Monitor keyword advertising (Google, LinkedIn)

TO 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 Ho [email_address] 416-348-0313, 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

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Enterprise toronto nov 2011 - marketing in web2-0 world Presentation Transcript