Managing Risk: Legal Issues for Merchants & Affiliate Managers
February 19, 2013
I will be speaking at Affiliate Management Days SF 2013 (April 16-17, 2013) on the topic of “Managing Risk: Legal Issues for Merchants & Affiliate Managers.”
Affiliate marketing is one of the most cost-effective techniques for monetizing web site traffic and driving sales. Unfortunately, it has a reputation for high risk. While the industry is unlikely to ever be risk-free, it is possible to manage risk by: (1) understanding how techniques like behavioral and contextual targeting affect consumers, affiliates and merchants, (2) understanding the legal and regulatory environment, (3) understating risks involved with prospective marketing partners, (4) using and maintaining proper contracts that allocate risk and provide appropriate indemnifications, and (5) keeping informed about the changes in technology, marketing practices and the regulatory environment. Attendees will learn how to identify these issues and develop policies and procedures to keep informed about the current technology, marketing strategies and regulatory compliance.
Topics covered include:
- Behavioral/Contextual Advertising
- Regulatory/Industry Compliance : FTC Guides & Enforcement Actions
- CAN-SPAM compliance
- IP Law: Rules governing use of others™ Trademarks/Keywords, Right of Publicity/Endorsement Issues.
- Identifying, protecting against, and disputing accusations of Click-Fraud
Geno Prussakov, the Founder & Chair of Affiliate Management Days and the CEO & founder of AM Navigator LLC did a pre-interview with me on Small Business Trends that can be found here.
Related articles
- Bad Affiliate Programs: Cheating and Stealing from Affiliates (earnblogger.com)
Whose Social Media Account Is It Anyway?
December 23, 2012
As a result of the rapid shift in marketing from unilateral one-to-many communications, to the multilateral, many-to-many or many-to-one conversations enabled by Social Media, employees and employers are struggling to manage accounts that are used for both work and personal purposes.
This new phenomenon has benefits, but it also creates a number of legal challenges. For employees, it may result in greater efficiency, more opportunities for authentic customers engagement and the ability to stay on top of the most current grands and business issues. For employers, it presents opportunity to reap substantial benefits from lower communications and customer support costs. For in-house counsel, it raises a host of legal and practical issues with few easy solutions and significant liability and regulatory risks.
First, there are hardware issues. Smartphones, tablets and other personal electronics often have social networking capabilities built in. in addition, they contain contain both personal and business data. Because these devices are always on and always connected, they are more than just personal property. They have become essential business tools. For both sides of the workplace equation, employers and employees must understand where the privacy lines fall between personal versus work-related information.
Second, there are data issues. Employers must balance their needs to monitor employee usage, employees’ privacy concerns, and the risk of liability for theft or exposure of data if a device is lost or stolen, or from lack of proper safeguards on account usage. For in-house counsel tasked with drafting policies to address these risks, , Prior to implementation of any policy, the legal team needs to educate front line employees and management on reasonable expectations of privacy and security and the harms that the organization seeks to prevent.
Lastly, recent cases such as the Cristou v. Beatport litigation, highlight the struggle to define and control the beginning and end of employee social media accounts, ownership and protection of intellectual property and the post termination risks that arise from the absence of appropriate policies.
As we prepare to start a new year, the time is ripe to establish security and privacy policies governing creation, maintenance and use of employees’ social media accounts for work functions. In-house counsel must lead the charge to educate, inform and train employees about privacy, security and evidence-recovery implications associated with use of social media.
Fashion Design & The Law: A Rulebook for Independent Designers & The Marketers Behind Them
July 30, 2012
Charles Colton famously stated “Imitation is the sincerest (form) of flattery.” This has never been more true than in the fast-paced world of fashion where designers constantly draw on prior art for inspiration. As Tim Gunn (mentor to would-be fashion designers on the television show Project Runway) often says, “Make it your own.”
Legislation under consideration in the U.S. may provide limited protection for Haute Couture fashion designs.
Read the full article on FasionsCollective.com.
Trademarks, Goodwill and M&A
July 9, 2012
A trademark includes any word, name, symbol, or device, or any combination, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. In short, a trademark is a brand name.
In Basile Baumann Prost Cole & Assocs., Inc. v. BBP & Assocs. LLC, the court examined the elasticity of the goodwill concept, which can extend to include brand, firm, and even that associated with individual members.
“Goodwill is “the total of all the imponderable qualities that attract customers to [a] business.” “There may be business or professional goodwill, or both combined in one enterprise.” Professional, or personal goodwill, “is good will that is based on the personal attributes of the individual such as personal skill, training, or reputation.” In Maryland, the concept of personal goodwill most often arises in cases involving the distribution of property in divorce, or covenants not to compete.”
“If … consumer satisfaction and preference is labeled ‘good will,’ then a trademark is the symbol by which the world can identify that good will.” “A sale of a business and of its good will carries with it the sale of the trademark used in connection with the business, although not expressly mentioned in the instrument of sale.”
Since goodwill is elastic – and divisible – attorneys in mergers, acquisitions and divestitures would do well to consult with a trademark lawyer to identify issues related to trademark (goodwill) ownership and transfer.
Perfect Pitch™ ©2009 David M. Adler, All Rights Reserved
My recent attendance at TechWeek Chicago 2012 reminded me of advice that I used to provide to start-up and technology entrepreneurs. I have spent the last 15 years of my law practice advising entrepreneurs and businesses in varying stages of development. At some point, all growing businesses will need an infusion of capital. Sometimes this comes from “friends, family and fools.” Just as often it comes from professional investors such as Angels or Venture Capitalists. If you or your business needs additional capital to get to the “next level” whether that be development of a “proof of concept,” execution of the go-to-market strategy or strategic investment in new people or technology, you will need to convince the investor that your idea or business is relevant to the target market, achievable by the people and intellectual capital behind it, and likely to result in a substantial increase in value.
It has been my experience that many entrepreneurs or CEO pitch-men lose sight of the forest for the tress. All too often, the “pitch” or presentation only focuses on one thing. Usually, it focuses too heavily on the idea or the market and not enough on the people and strategy. On the other hand successful presentations seem to incorporate three basic, yet distinct concepts, what I call the tri-partite “Perfect Pitch.” In a nutshell the Perfect Pitch answers three questions: Who Am I? What Am I? Why Am I?
Who Am I?
Answering this question tells investors about the people behind the idea. Every presentation should begin with a short, pithy and relevant description of the people and company, their history together and their qualifications for successfully commercializing this idea. For example: “John Doe, Jane Smith and Mary Jones each graduated in 2006 with a MBA from the Whoopity School Of Business. John has 5 years experience managing operations for a national retail chain. Jane has a 4 years experience as an assistant human resources manager for a Fortune 500 Company. Mary operated a small consulting business for 3 years before shutting down operations to pursue her MBA. Last year, they formed National Widget Sales Consultants (NWSC) as a Delaware LLC to capitalize on the emerging/growing/widening need for retailers to leverage the growing list of retail sales technologies.”
What Am I?
Answering this question tells the investor about the specific product or service offered and the revenue model. Put another way, answering this question tells investors what you do, how you do it and how you plan to make money. It never ceases to amaze me how many entrepreneurs forget the making-money part. They simply assume that advisors, investors and strategic partners will intuitively “get it.”
We won’t unless you tell us in plain and simple terms. If it is a product, does it stand alone or will it be incorporated into an end-product? Will it be sold wholesale, at retail, through VARs, through an inside sales team, or through an outside sales team, e.g. commissioned sales reps? How will the product be distributed? Will you have your own distribution? Will you piggy-back on another’s? Will you use a traditional courier, e.g., UPS or FedEx?
If it is a service, how will you market it? How will customers acquire it? Will it be licensed? How do you plan to keep customers coming back?
Continuing our previous example, “NWSC has created a proprietary and highly-customizable system that will be marketed and sold by an inside sales force. We will place consultants within our clients’ businesses to dissect their retail operations, identify operational and sales goals and evaluate which of the many technologies in the marketplace are the best fit for achieving those goals. NWSC generates revenue through consulting fees, commissions on technology sales and licensing the system to third-party business consultants.”
This is also the part of the presentation where you want to highlight the existence and commercial viability of any Intellectual Property including, Patents, Trademarks, Copyrighted content and Trade Secrets as well as proprietary technology or systems and methods.
Why Am I?
Now that you have convinced us that you are qualified to run this business and that you know how it will make money, you need to convince us how or why your idea meets existing or potential needs in the marketplace. Another common mistake I see is a focus on market size, penetration and growth. Yes, it’s true that VCs want to see Billion Dollar markets. But, more importantly, they want to know why your idea is going to penetrate that market and capture sales.
For example, is the market fragmented with no dominant provider? Are there segments of the market that are underserved by existing products/services? Put another way, what is your value proposition? Why will customers choose your product or service over their existing, entrenched ways of doing business? Again, don’t assume your audience will instinctively understand this. The more sophisticated the product or service, the more you will have to flesh out this value proposition.
The Bottom Line.
While following the method outlined above is not guaranteed to land you that round of financing that you are after, it will no doubt help. Paying attention to answering these three simple questions will help keep you focused, keep you on message and provide a framework for answering the types of questions that your advisors, investors and strategic partners will be asking themselves. Good Luck!
World Social Media Legal News Roundup
June 24, 2012
Law professor says social media can pose legal problems in Courtroom
Winnipeg Free Press
SASKATOON – The dean of law at the University of Saskatchewan says using social media can have negative consequences in the Courtroom – Business – Winnipeg Free Press.
Eight Ways Your Employee Social-Media Policy May Violate Federal law
AdAge.com (blog)
All employees have certain rights under federal law that social-media policies can’t restrict.
New Law to Force Identification of Trolls Set to be Unveiled
Technorati
Home / Social Media / Articles / New Law to Force Identification of Troll. … is behind the attacks on them online without having to resort to expensive legal action.
A blue wave of change Cleveland County law enforcers join move toward social media alerts
Norman Transcript
Lauri Stevens, a social media strategist at LAwS Communications, a Boston-area company, said law enforcement agencies nationwide are beginning to embrace social media.
Social media helped, hurt in hunt for suspect in triple shooting
Washington Post
Social media at times was a help, other times a hindrance in the search and eventual arrest of a suspect in the triple fatal shooting at an Alabama apartment complex.
Use social media, but use it responsibly, UAE conference hears
gulfnews.com
He said, “We do not monitor social media networks. People have the freedom to speak within the legal framework. There is no law specifically for twitter, but …
Police: Street gangs embrace social media, too
Kansas.com
Beard gave a presentation on gangs, the Internet and social media at last week’s Midwest Law Enforcement Conference on Gangs and Drugs, held in Wichita.
And…don’t forget to check out my presentation on the Law & Social Data panel at #TechWeek Chicago 2012.
The past few years have witnessed an explosion of legal and regulatory activity involving social and other new media. This session will examine several key areas, including copyright, trademark and related intellectual property concerns; defamation, obscenity and related liability; false advertising and marketing restrictions; gaming; data privacy issues presented by social media; and impacts of social media on employees and the workplace. Attendees will learn how to identify legal risks and issues before they become full-scale emergencies and how to develop appropriate policies and guidelines covering social media activity.
If you can’t make it, check out the Slideshare presentation here.
Fashion Law: Legal News Roundup
May 10, 2012
Israel’s Ban on Ultra-Thin Models
FASHION-SAFRICA-NIGERIA-BAKARE (Photo credit: Bohan Shen_沈伯韩)
By Talya Minsberg A new Israeli law prohibits fashion media and advertising from using Photoshop or models who fall below the World Health Organization’s standard for malnutrition. When a 14-year-old girl delivered a 25,000-signature petition this week to Seventeen asking them to curb their use of Photoshop, the magazine issued a press statement that congratulated the girl on her ambition but was conspicuously silent on changing their editorial practices.
An Impossible Conversation About the Met’s Spring 2012 Costume Institute Exhibit
Huffington Post (satire)
So, culturally and historically, the reason women care so much about fashion is that until very recently, we weren’t allowed professional, legal or vocal ways of expressing ourselves. Fashion was a way of articulating our feelings about ourselves.
Small Aussie fashion label turns George Lucas legal threat into ‘Star …
Dallas News Small Aussie fashion label turns George Lucas legal threat into ‘Star Wars‘ clothing deal.
AsianFashionLaw | Page 5
Fashion lawyers are legal experts too. Sometimes I feel as though people think I am in design studios all day twiddling my thumbs as I look at models wearing …
www.asianfashionlaw.com/page/5/
Adidas-India’s ex-MD slaps legal notice on company - Fashion United
The Adidas-saga in India seems to be taking a different turn. - Fashion India News, Network, Business Community, fashion industry, international, platform for …
www.fashionunited.in/…/adidas-indias-ex-md-slaps-legal-notic…
David M Adler, noted entertainment and creatival arts lawyer will be participating in the Visiting Artist Series with Reginald Lawrence (Shepsu Aakhu).
Tuesday, April 10, 2012 11:50 – 1:30 pm
DePaul Center – Room 80051 E. Jackson Blvd.Chicago, IL 60604
Lunch will be served.
Visiting Artist Reginald Lawrence (Shepsu Aakhu) will discuss the legal issues that he has faced in his multi-dimensional career as a playwright, producer, director, and arts educator. In particular, he will focus on the life cycle of a theatrical production from dealing with authors to hiring actors, directors, and crew to mounting the finished production. He will share his perspective on legal questions related to collaboration, intellectual property, and production credit.
Leading Chicago arts lawyer David Adler will join in the conversation, and Professor Margit Livingston will moderate.
For more information on the Visiting Artist Series, please click here.
Registration: General registration is $25 for the 1.5 hour CLE discussion. To register, please visit http://www.regonline.com/reginaldlawrence.
DePaul students, faculty, and staff can register to attend for free by emailing Cecelia Story at cstory@depaul.edu.
DePaul University College of Law is an accredited CLE provider. This event has been approved for 1.5 CLE credits.
