Every business needs to be on social media these days. However, social media can be legally risky if done wrong! Learn five top tips to keep your business from getting sued while using social media for marketing.

1. TIPS TO MARKET
YOUR BUSINESS ON
SOCIAL MEDIA
a n d n o t g e t s u e d
C L E A R F O C U S L A W , P L L C
5

2. These days, everyone is on social media – including your
clients or customers! Marketing on social media simply
isn’t optional if you want your business to thrive. The
legal pitfalls of social media marketing can be tricky and
devastating though. This guide is a roadmap to help you
avoid those legal pitfalls.
C L E A R F O C U S L A W , P L L C
ABOUT THIS GUIDE

3. Failure to Establish Guidelines about
Use of Third-Party Intellectual
Property in Company’s Official Social
Media Publications
1

4. L E S S O N L E A R N E DTHE SCENARIO
 Your company has Facebook® presence and one of
your employees has the responsibility to post regularly
to the page. You are developing relationships with
your clients, engagement is high, and client enjoy
commenting on your upcoming products.
 A major software company claims infringement of their
trademark and copyrighted material, demanding that
you delete 50% of your previous year’s posts. This
company is an affiliate of one of your biggest
competitors and your social media employee has been
regularly referencing this company in the context of
rants, comparisons, and testimonials.
 Your company hires a high-priced defense attorney. He
replies that the posts are likely covered by the “Fair
Use” exception but that if there was a lawsuit, it could
cost $100,000+ to defend (+ penalties) if you lose.
 Wouldn’t it have been nice to have established proper
use guidelines, including how to stay within the
It is absolutely critical that
employees who post on
official company social
media publications (and this
includes “older” tools such
as blogs or even email) be
given bright-line guidelines
on what they should and
should not post when it
comes to the intellectual
property of others. This
should include information
on how to stay within the
safe harbor of the Fair Use
Doctrine.

5. R E C O M M E N D AT I O N S
 Employees who post on official company social media
publications should receive training on proper etiquette to
respect the intellectual property of others. This includes
using their intellectual property in compliance with their
brand usage guidelines if they exist.
 Establish guidelines that specify what your employees should
and should not post on your social media publications, and
remind everyone to be cognizant that everything that is
posted can (and most likely will) be read by the whole world.
 Provide an easy protocol by which “take-down requests ” can
be easily submitted, received and acted on. Include this
protocol in the terms and conditions of your website and
other online presence.

6. Failure to Establish Guidelines
Regarding Employee Disclosure or
Reference of Company Information in
Personal Social Media Posts
2

7. L E S S O N L E A R N E DTHE SCENARIO
 Your company is in the investment advising business,
focusing on high net worth individuals. You hire a
smart and motivated account executive who also
happens to have a Twitter® account where he
regularly gives flip investment news and even throws
some barbs at competitors. After a couple of years, he
has been featured in the news a few times, has done a
remarkable job with networking, and is inextricably tied
to your company. Not long after this new rise to fame,
your company is sued for defamation by a competitor
and your state’s Securities Commission also fines your
company for providing investment advice without
supplying a proper prospectus.
 As it turns out, your new account executive is rather
competitive and, in return for your biggest competitor
“stealing” a few key clients, posts some negative
comments about the ethics of this competitor. Also,
while he never makes outright stock or fund
recommendations in his social media posts, he often
Unfortunately what is posted by an
employee on his/her private time on
his/her privately owned or controlled
social media account doesn’t always
stay private. In a world where
importance (and sometimes self worth)
is determined by the number of social
media “friends” or “followers,”
sometimes it is easy for supposedly
private posts to be taken out of
context. Especially when the poster is
well known to be employed by a
particular company, it is not a difficult
leap for a disgruntled competitor or
person to attribute the posts to the
company, leading to an unwelcome
dose of hot water!

8. R E C O M M E N D AT I O N S
 A social media policy is an absolute must for every business and
organization.
 Social media policies must address the possibility that posts made by
employees may be attributable to employers. Therefore, policies
should provide guidelines on what topics an employee may not post on
even on their own time (without running afoul of First Amendment or
whistleblower rights).
 If your business “officially” publishes social media content, whether it is
in a company branded account or accounts associated with employees
but clearly for use in promoting your business, then clear guidelines on
protocol and etiquette should also be established in your social media
policy.
 The best policies in the world are useless unless they are followed.
Since the legal aspects of social media are a very new and seldom
considered subject matter, some training to accompany the policies is
also a good idea.
There are many additional risks related to social media policies.
Whenever a company doesn’t have such a policy, or adopts an
under-broad (or even over-broad) policy, the risks include legal
liability, bad press or even criminal fines and penalties. Instead of
adopting generic plans or simply borrowing plans from other
businesses found through an internet search, it is usually best to
have a customized policy drafted with your business and its practices
in mind.

9. Failure to Understand (and Abide
by) the CAN-SPAM Act
3
Everyone hates spam right? Unfortunately this fact has not stopped a few enterprising
leaches to abuse electronic communication tools (most often email), resulting in a pretty big
law, with big teeth, that can ensnare ordinary law-abiding businesses as easily as spam
peddlers. With penalties running as high as $16,000 per violation, every business needs to
know how not to run afoul of the CAN-SPAM Act.

10. L E S S O N L E A R N E DTHE SCENARIO
 Your company has started using email lists and regular
emails that are essentially digest versions of your blogs
and recent Facebook® posts. A link has also been added
to your website offering a free report if someone signs up
for your “free newsletter.”
 A year and 300 subscribers later, one of your employees
purchases an email list from a vacation advertiser who
operated a “contest booth” at the local mall and, based on
the preferences indicated in their contest entries, some of
these emails were added to your list.
 Your company receives a demand letter from a consumer
protection attorney representing multiple “subscribers” to
your email list, and a cease and desist letter from the
Federal Trade Commission. It seems that many of your
subscribers were sending unsubscribe requests to the
email account your company had dedicated to receive
such requests, but were ending up in the spam folder.
Since your company moved its offices six months ago and
did not update the address information on the emails,
these letters weren’t received until it was too late to
If your company utilizes
direct emailing as part of its
social media, customer
engagement or even
product update strategies, it
is absolutely critical that the
provisions of the CAN-SPAM
Act be followed exactly. In
fact, there is some indication
from recent case law that
even other social media
tools may start to be subject
to CAN-SPAM Act scrutiny.

11. R E C O M M E N D AT I O N S
 Make sure your employees (and agents*) are aware of
the requirements of the CAN-SPAM Act and how to
comply with it.
 Establish best practices to be followed by anyone who
sends commercial communications on behalf of your
business.
 Use a commercial email list management vendor to
manage your commercial communications. Most of
them have safeguards in place that help ensure that
you follow the CAN-SPAM Act. ✝
*The CAN-SPAM Act makes it clear that even if a third-party is conducting email campaigns for a business, the business
remains liable for any violations of the act.
✝One of the most important features of these services is an automatic unsubscribe link that will unsubscribe recipients
without any action on your part. This is a much superior system to a manual system where recipients are asked to send
email (that can be misdirected, caught in spam filters, or simply overlooked) to a particular email address in order to
request to be unsubscribed.

12. Failure to Protect Your Brand
4

13. THE SCENARIO
 As a growing business, your brand is one of your most important assets, if not the most
important of your assets. Beyond properly registering key brand names as Trademarks
under State or Federal law, and establishing copyright ownership of your authored
materials, there are steps that you must take to properly protect your brand against a
significant but often overlooked threat: brand genericness.
 Regardless of registration under State or Federal law, brand genericness is the death knell
of any brand. Once a brand has been declared to be “generic” then it is considered public
domain and can be used freely by anyone. So how exactly does a brand become generic
and how does a careful brand owner prevent this?
 A brand becomes generic when its use in everyday conversation, writing and language is so
commonplace and general that it no longer has any significance as a brand. Examples of
well known brand that have become generic and that have lost their trademark protection
include: Aspirin (originally owned by Bayer); Escalator (originally owned by Otis Elevator
Company); and more recently, Pilates (originally owned by Pilates, Inc.) Factors that the
courts look at to determine whether a brand has become generic include: a) inclusion in
dictionary definitions, b) use by the brand owner in a generic fashion, c) generic use by the
media, and d) generic use by competitors.

14. L E S S O N L E A R N E DTHE SCENARIO (cont’d)
 First the bad news: the latter three of these
factors is often implicated by social media. Social
media may have made it easier for everyone to
“build relationships” and “stay in touch” but it has
also made it easy for anyone and everyone to be
a published author. Whether in the context of
product reviews or discussions, this has also made
it easier for these same users of social media to
be careless about using your brand in a generic
manner. These careless users can be the “media,”
your competitors, or even your own employees or
agents. Bottom line: in a social media world, it is
much easier for your brand to become generic.
 The good news is that as a proactive brand owner
you can be quite effective in doing something
about it.
As a small business, your brand and
brand assets are some of your most
important assets. You absolutely
cannot afford not to take proactive
steps to protect them.
Think of your brand and brand assets
(that includes your logos, trademarks,
copyrighted materials, etc.) as your
business’ crown jewels and protect
them accordingly. The next page has
recommendations on how to do this.

15. R E C O M M E N D AT I O N S
 Publish a “trademark usage guide” everywhere you have a significant
on-line presence. This guide not only lets everyone know that you are
declaring your ownership of your trademarked brand names, but gives
them specific instructions on how they may or may not reference your
trademark.
 Be vigilant in using (free) subscription based search alert services such
as Social Mention (www.socialmention.com) or Google Alerts™ to track
usage of your brand names and address improper usage or (even
worse) infringement quickly and aggressively.
 If you discover false, misleading or derogatory online content about
your brand, consider utilizing the services of an attorney to address the
usage under defamation, unfair trade practices or Federal Trade
Commission rules
 Make sure everyone in your organization, and all of your agents, use
proper etiquette when referencing your brand names or writings. At a
minimum this involves using the trademark (“™”), service mark (“℠”), or
copyright (“©”) designations properly.

16. Failure to Follow State Laws and
Social Media Provider Guidelines
for Contests or Promotions
5

17. L E S S O N L E A R N E DTHE SCENARIO
 Your company a successful “brick and mortar” local
business with a loyal following. To capitalize on the
success of online coupon programs, you create your own
online coupon program. To publicize it, you establish a
Facebook Fanpage and hold a contest whereby every
patron who “checks in” to your business on their Facebook
page and makes a purchase gets an entry, and at the end
of the month, a random drawing will be made for a
particularly highly desired product that you sell. You make
a general statement about the contest on your website and
Facebook Fanpage and launch the contest.
 Unfortunately, just a few days into your contest period, you
receive a Facebook notification that your contest violates
their Promotions Guidelines and that as a result, your
Fanpage has been suspended. At the end of the month,
you hold your drawing anyway. However, a disgruntled
customer who didn’t win complains to the Attorney
General’s Office and Federal Trade Commission and you
are notified that your contest did not comply with your
The holding of contests is actually a very
involved process with a myriad of legal
requirements to comply with, both on the
Federal and state level. To compound the
problem, any contest that is conducted
through a social media account must also
comply with the terms and conditions of the
social media provider.
As an example, Facebook’s Promotions
Guidelines have many guidelines that must
be followed for contests promoted or
conducted through a Facebook page
including a specific provision that entries
cannot be made by “liking” a page or
“checking in” to a location through
Facebook. Other notable guidelines include
a prohibition on using Facebook’s brand
names in such a way as to imply that
Facebook sponsors or his responsible in any

18. R E C O M M E N D AT I O N S
 Unless your business has already successfully conducted
many contests on its own already and are therefore very
familiar with the landscape, it is highly recommended
that you use the services of a marketing firm with
experience in planning and executing social media
related contests, or utilize the services of an attorney
who practices social media law.

19. C L E A R F O C U S L A W , P L L C
NEED HELP?
 This publication has been provided as an education
research only, by Clear Focus Law, PLLC.
 If you need help with making your business use of
social media, please contact us for a consultation or
strategy session.
 We are based in Richland/Kennewick, Washington,
but, being a digital law firm, we can help you
regardless of where in Washington you are located.

20. I’M ERIC
I ’ D L O V E T O H E L P Y O U
P L A N F O R L E G A L S U C C E S S !
E R I C H S U | A T T O R N E Y
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C L E A R F O C U S L A W . C O M
/ C L E A R F O C U S L A W
L I N K E D I N . C O M / I N / E R I C - H S U /
/ C L E A R F O C U S L A W

21. The contents of this publication are © 2019, Clear Focus
Law, PLLC. All rights are reserved except as follows:
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COPYRIGHT NOTICE
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 If this publication is shared, distributed or copied, it must be
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 This publication may not be altered in any way when it is
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22. This has been a publication of Clear Focus Law, PLLC
and was written by Eric Hsu, an attorney who practices
business law in the State of Washington. The contents
of this publication, including recommendations
contained therein are general educational material and
are not tailored to the specific circumstances of any
person or business and therefore should not be
regarded as legal advice. Readers desiring legal advice
on any topic covered in this publication are advised to
seek the services of a qualified attorney.
C L E A R F O C U S L A W , P L L C
DISCL AIMER