Trademark, Copyright, and Sweepstakes Basics


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Trademark, Copyright, and Sweepstakes Basics

  1. 1. Trademark, Copyright, and Sweepstakes BasicsLegal Considerations for Marketing, Branding, and Promotions
  2. 2. PresenterPatricia A. Foster, Frost Brown Todd LLC• Litigation and IP practice includes business, advertising, media, and IP issues.• Previously enjoyed many years in the hospitality industry with an HRI degree from Michigan State University and sales and marketing positions for two international hotel chains.• Worked overseas as a hospitality consultant with projects in Europe, Australia, and North Africa. Austin Padgett, Frost Brown Todd LLC • Practice focuses on intellectual property and advertising litigation and transactions. • Represents consumer marketing companies—from small start-ups to some of the best-known brands in America—in delivering practical solutions to problems. • Works as a professional musician and has a recording studio in his home basement.
  3. 3. This is Marketing.
  4. 4. This is you.
  5. 5. Building Your Brand• Meet the Definitions• Interaction with Consumers• Interaction with Other Brands
  6. 6. Building Your Brand
  7. 7. Interactivity
  8. 8. What Brands Want . . .
  9. 9. DefinitionsSweepstakes Contests
  10. 10. DefinitionsSweepstakes Contests Game of Game of Chance Skill
  11. 11. Definitions
  12. 12. Definitions
  13. 13. Definitions
  14. 14. Definitions
  15. 15. Definitions
  16. 16. Lotteries
  17. 17. Lotteries
  18. 18. Lotteries
  19. 19. Lotteries You are not allowed to run a lottery.
  20. 20. Lotteries Remove an element.
  21. 21. Lotteries
  22. 22. Lotteries
  23. 23. Lotteries
  24. 24. Sweepstakes—Free Entry •Equal Dignity Rule •Consideration is a benefit/detriment: •Store visits (Ohio) •Attendance at drawing (Iowa) •Self-Addressed Stamped Envelope (Vermont)
  25. 25. Selling Stuff
  26. 26. Early Brand Interaction
  27. 27. Media Shift
  28. 28. User-Generated Content From Ze Frank’s YoungMe/NowMe
  29. 29. User-Generated Content From Ze Frank’s YoungMe/NowMe
  30. 30. User-Generated Content
  31. 31. User-Generated Content•Issues: •Who owns the content? •How much do you take? •Who is judging the content (for a contest)?
  32. 32. User-Generated ContentOwnership Issues:
  33. 33. User-Generated Content •How much do you take? Reproduce Public Derivative Display Works Copyright Public Distribute Performance
  34. 34. User-Generated Content •Who is Judging? •Qualified judges •Public vote? •Clear criteria
  35. 35. Know the Forum
  36. 36. Know the Forum
  37. 37. Know the Forum General Guidelines: •No entry for those under 18. •Entry must be free. •Provide appropriate releases for Facebook. •Watch out for international competitions.
  38. 38. Know the Forum
  39. 39. Know the Forum You cannot: You can:Notify winners Collect an email orthrough Facebook, address through thesuch as through third-partyFacebook application for themessages, chat, or promotion.posts on profiles orPages.
  40. 40. Know the Forum You cannot: You can:Condition entry in Use a third-partythe promotion upon application toa user providing condition entry to thecontent on promotion upon aFacebook. user providing content.
  41. 41. Know the Forum You cannot: You can:Instruct people to Instruct users to visitsign up for a the third-partyFacebook account application to enterbefore they enter the promotion.the promotion.
  42. 42. Interacting with Brands
  43. 43. Interacting with Brands • Clearance Trademark Searches for Promotion Name and Tag Lines • Disclaimers for Branded Prizes • Big Problems with Big Promotions
  44. 44. Interacting with Brands Likelihood of Consumer Confusion? (1) The strength of plaintiff’s mark; (2) The similarity of the parties’ marks; (3) The similarity of the parties’ products; (4) The marketing channels for the parties’ products; (5) The likelihood of expansion of the product lines; (6) Actual consumer confusion between the two marks; (7) The defendant’s intent in adopting its mark; and (8) Likelihood of expansion of the product lines.
  45. 45. Interacting with Brands
  46. 46. Interacting with Brands "The heart of the matter is that Coors has unfairly used the associations marks for its own promotions and as prizes for its promotions and has traded on the good name of the NCAA," he said.
  47. 47. Promotions• Meet the Definitions • Sweepstakes—Consideration Issues • Contests—Judges and Criteria Issues• Interaction with Consumers • Know the rules for the type of promotion. • Know the special rules of the forum. • Be aware of what you are taking from promotion participants if using UGC.• Interaction with Other Brands—Be aware of limitations when interacting with other brands.