By Katie Kilkenny

The advertising watchdog that found 51 examples of false advertising on Goop's website last year isn't impressed by the lifestyle website's new “coding system” for flagging which claims are supported by scientific evidence.

Nonprofit organization Truth in Advertising (TINA.org) published a story about the new set of disclaimers on the website of Gwyneth Paltrow's lifestyle brand, pointing out two major issues. “They don’t stick out so most people miss them anyway and, legally speaking, they can’t cure a false claim — the false claim being that, regardless of how Goop wants to project itself to the world, the company does not possess the appropriate scientific evidence to support many of the health claims on its site,” it said.

In its Tuesday letter, TINA.org said it sent a follow-up note to advertising regulators on Friday noting problems with the disclaimers. “In short, Goop continues to deceive consumers and is trying to cover its tracks with disclaimers that are legally and practically ineffective. As such, we strongly urge that action be taken in order to protect consumers from Goop’s ongoing deceptive marketing,” the letter read.

Read the full article here.

Here’s How To Make Sure You, Your Business and Website Are FTC & GDPR Compliant

By now it should be clear how important it is for you to be FTC compliant. But how can you do that without spending $7,500-$8,000 or more on Internet Attorneys?

Smart business owners around the world are doing it with the help of FTC Guardian.

FTC Guardian is a service that is 100% focused on helping to keep you get and stay FTC & GDPR compliant and fully protected. And right now, we are offering a free training to give you the knowledge, information, and guidance that you need to stay out of trouble with the Federal Trade Commission and the new GDPR guidelines.

Free Compliance Workshop: Join Chip Cooper, Esq., the #1 FTC Compliance & GDPR trainer in the World, for a one-of-kind, completely free online compliance workshop.

Workshops fill up quickly, so register now.

Here are some of the things you’ll discover on the training:

• Real-Life Examples of People Who Didn’t Think They Were At Risk, But Who Got Nailed By The FTC, And Why It Could Happen To You, Too

• The 3 Enormous Powers The FTC Has That Can Change Your Life – And Your Family’s Life – Forever!

• How to Avoid FTC Claims When Collecting Leads With Optin Forms

• 3 Privacy Policy Mistakes Every Digital Marketer Is Making, And Why You’re In The FTC Crosshairs.

• And Much More…

Remember: legal protection is a massively important part of your business, and it’s one you cannot afford to ignore any longer.

Go here to register for our next FREE training and make your business is FTC compliant today!

Disclaimer:  This article is provided for informational purposes only. It’s not legal advice, and no attorney-client relationship is created. Neither the author nor FTC Guardian, Inc. is endorsed by the Federal Trade Commission.

By Devdiscourse team

A federal district court has granted the Federal Trade Commission’s request to stop a group of San Diego-based Internet marketers from deceptively advertising free trial offers and not only charging consumers full-price for the trial product but also enrolling them in expensive, ongoing continuity plans without their knowledge or consent. The court order announced today temporarily halts the operation, freezes its assets, and appoints a temporary receiver over the business.

According to the FTC’s complaint, the defendants market and sell a variety of products online, including skin creams, electronic cigarettes, and dietary supplements. Advertising through third-party websites, blog posts, and surveys, the defendants allegedly offer consumers “RISK FREE” trials of products such as “Wrinkle Rewind,” “Erase Repair H/A,” “Pro Vapor,” “Cerebral X,” “Test X Core,” and “Garcinia Clean XT.”

In addition, the FTC alleges the defendants use deceptive order confirmation pages to trick consumers into ordering additional products, for which the defendants similarly charge consumers full price and enroll them in negative-option plans. The defendants then make it difficult to cancel the continuity plan, stop or avoid the recurring charges, or obtain a refund.

Read the full article here.

Here’s How To Make Sure You, Your Business and Website Are FTC & GDPR Compliant

By now it should be clear how important it is for you to be FTC compliant. But how can you do that without spending $7,500-$8,000 or more on Internet Attorneys?

Smart business owners around the world are doing it with the help of FTC Guardian.

FTC Guardian is a service that is 100% focused on helping to keep you get and stay FTC & GDPR compliant and fully protected. And right now, we are offering a free training to give you the knowledge, information, and guidance that you need to stay out of trouble with the Federal Trade Commission and the new GDPR guidelines.

Free Compliance Workshop: Join Chip Cooper, Esq., the #1 FTC Compliance & GDPR trainer in the World, for a one-of-kind, completely free online compliance workshop.

Workshops fill up quickly, so register now.

Here are some of the things you’ll discover on the training:

• Real-Life Examples of People Who Didn’t Think They Were At Risk, But Who Got Nailed By The FTC, And Why It Could Happen To You, Too

• The 3 Enormous Powers The FTC Has That Can Change Your Life – And Your Family’s Life – Forever!

• How to Avoid FTC Claims When Collecting Leads With Optin Forms

• 3 Privacy Policy Mistakes Every Digital Marketer Is Making, And Why You’re In The FTC Crosshairs.

• And Much More…

Remember: legal protection is a massively important part of your business, and it’s one you cannot afford to ignore any longer.

Go here to register for our next FREE training and make your business is FTC compliant today!

Disclaimer:  This article is provided for informational purposes only. It’s not legal advice, and no attorney-client relationship is created. Neither the author nor FTC Guardian, Inc. is endorsed by the Federal Trade Commission.

Despite the explosion in mobile advertising (eMarketer pegs mobile to generate $70 billion in the U.S. this year, up from $47 billion in 2016), mobile advertising, by and large, still sucks. Creative is often jammed into small boxes and ad formats that litter websites, and in some cases, marketers use deceptive design tricks to incentivize people to click.

Dozens of subreddits are dedicated to uncovering such stealthy-yet-spammy tactics. A few weeks ago, a screenshot of a mobile banner ad for Chatmost, a competitor to Craigslist, started spreading on Twitter and Reddit because the creative included a small speck that looked like a piece of dirt, encouraging users to swipe their screen as a way to drive clicks.

By Dani Deahl

Consumer goods company Unilever is threatening to pull all advertising from online platforms that allow “toxic” online content, as reported by Reuters. According to a speech that is expected to be made today by Unilever’s chief marketing officer Keith Weed, the move will encompass platforms that “do not make a positive contribution to society.”Unilever is one of the world’s biggest online advertisers, and for it to pull spending from any platform would be a significant revenue blow. Last year, Unilever spent $9.4 billion on marketing, about a third of which was on digital advertising. “It is critical that our brands remain not only in a safe environment, but a suitable one,” Weed plans to say in his speech. “Fake news, racism, sexism, terrorists spreading messages of hate, toxic content directed at children … it is in the digital media industry’s interest to listen and act on this. Before viewers stop viewing, advertisers stop advertising and publishers stop publishing.”

Read full article and learn more about Deceptive Advertising here.

Here’s How To Make Sure You, Your Business & Website Is FTC Compliant

By now it should be clear how important it is for you to be FTC compliant. But how can you do that without spending $7,500-$8,000 or more on Internet Attorneys?

Smart business owners around the world are doing it with the help of FTC Guardian.

FTC Guardian is a service that is 100% focused on helping to keep you get and stay FTC compliant and fully protected. And right now, we are offering a free training to give you the knowledge, information, and guidance that you need to stay out of trouble with the Federal Trade Commission.

Free Compliance Workshop: Join Chip Cooper, Esq., the #1 FTC Compliance trainer in the World, for a one-of-kind, completely free online compliance workshop. Workshops fill up quickly, so register now.

Here are some of the things you’ll discover on the training:

• Real-Life Examples of People Who Didn’t Think They Were At Risk, But Who Got Nailed By The FTC, And Why It Could Happen To You, Too

• The 3 Enormous Powers The FTC Has That Can Change Your Life – And Your Family’s Life – Forever!

• How to Avoid FTC Claims When Collecting Leads With Optin Forms

• 3 Privacy Policy Mistakes Every Digital Marketer Is Making, And Why You’re In The FTC Crosshairs.

• And Much More…

Remember: legal protection is a massively important part of your business, and it’s one you cannot afford to ignore any longer.

Go here to register for our next FREE training and make your business is FTC compliant today!

Disclaimer:  This article is provided for informational purposes only. It’s not legal advice, and no attorney-client relationship is created. Neither the author nor FTC Guardian, Inc. is endorsed by the Federal Trade Commission.

By Mikey Glazer

There’s a new social media beef brewing in Hollywood.

A cross-section of influencers, their reps, and brand middlemen called out the FTC’s compulsory disclosures for their lucrative “sponsored post” line of business as unfair and discriminatory because television shows, music videos, NBA stars and Kardashians get a pass for publishing the same content.

Though billed as a panel featuring actress/social media star Arden Rose, online video vet Larry Shapiro (FullScreen, Big Frame, Ensemble), Ruben Ochoa (Head of the Disruptiv Agency), and digital L.A.’s glue Drew Baldwin (Tubefilter, The Streamy Awards), these stakeholders in the social media industry on stage and allies in the crowd unanimously grilled panelist Thomas Dahdouh, Director of the Federal Trade Commission’s Western Division, who kept his cool under gang cross-examination similar to a witness testifying before Congress.

Here’s How To Make Sure You, Your Business & Website Is FTC Compliant

By now it should be clear how important it is for you to be FTC compliant. But how can you do that without spending $7,500-$8,000 or more on Internet Attorneys?

Smart business owners around the world are doing it with the help of FTC Guardian.

FTC Guardian is a service that is 100% focused on helping to keep you get and stay FTC compliant and fully protected. And right now, we are offering a free training to give you the knowledge, information, and guidance that you need to stay out of trouble with the Federal Trade Commission.

Free Compliance Workshop: Join Chip Cooper, Esq., the #1 FTC Compliance trainer in the World, for a one-of-kind, completely free online compliance workshop. Workshops fill up quickly, so register now.

Here are some of the things you’ll discover on the training:

• Real-Life Examples of People Who Didn’t Think They Were At Risk, But Who Got Nailed By The FTC, And Why It Could Happen To You, Too

• The 3 Enormous Powers The FTC Has That Can Change Your Life – And Your Family’s Life – Forever!

• How to Avoid FTC Claims When Collecting Leads With Optin Forms

• 3 Privacy Policy Mistakes Every Digital Marketer Is Making, And Why You’re In The FTC Crosshairs.

• And Much More…

Remember: legal protection is a massively important part of your business, and it’s one you cannot afford to ignore any longer.

Go here to register for our next FREE training and make your business is FTC compliant today!

Disclaimer:  This article is provided for informational purposes only. It’s not legal advice, and no attorney-client relationship is created. Neither the author nor FTC Guardian, Inc. is endorsed by the Federal Trade Commission.

Google is trying to restore peace of mind for users by blocking disruptive and deceptive ads.

Google allows app developers to monetise their apps in various ways such as in-app purchases, one-time payment, subscriptions or through mobile advertisements. Most free app developers rely on mobile advertisements as it allows them to keep the apps free for users.

However, mobile advertisements can be very annoying as they often show at the most inopportune time, waste mobile data and disrupt users from doing whatever they were in the middle of.

Google has updated its monetization and ads policy for the Play Store to rein in apps which are intrusive, show advertising outside of the app and make false claims to deceive users.

Google’s new Lockscreen Monetization policy prohibits app developers from showing advertisements or other such features on the smartphone’s lockscreen, unless it is a launcher or lockscreen app. It says, “Ads must only be displayed within the app serving them.”

Read full article and learn more about trends in technology here.

Here’s How To Make Sure You, Your Business & Website Is FTC Compliant

By now it should be clear how important it is for you to be FTC compliant. But how can you do that without spending $7,500-$8,000 or more on Internet Attorneys?

Smart business owners around the world are doing it with the help of FTC Guardian.

FTC Guardian is a service that is 100% focused on helping to keep you get and stay FTC compliant and fully protected. And right now, we are offering a free training to give you the knowledge, information, and guidance that you need to stay out of trouble with the Federal Trade Commission.

Free Compliance Workshop: Join Chip Cooper, Esq., the #1 FTC Compliance trainer in the World, for a one-of-kind, completely free online compliance workshop. Workshops fill up quickly, so register now.

Here are some of the things you’ll discover on the training:

• Real-Life Examples of People Who Didn’t Think They Were At Risk, But Who Got Nailed By The FTC, And Why It Could Happen To You, Too

• The 3 Enormous Powers The FTC Has That Can Change Your Life – And Your Family’s Life – Forever!

• How to Avoid FTC Claims When Collecting Leads With Optin Forms

• 3 Privacy Policy Mistakes Every Digital Marketer Is Making, And Why You’re In The FTC Crosshairs.

• And Much More…

Remember: legal protection is a massively important part of your business, and it’s one you cannot afford to ignore any longer.

Go here to register for our next FREE training and make your business is FTC compliant today!

Disclaimer:  This article is provided for informational purposes only. It’s not legal advice, and no attorney-client relationship is created. Neither the author nor FTC Guardian, Inc. is endorsed by the Federal Trade Commission.

By Chip Cooper, Esq

Experienced Internet marketers often operate under the misconception that the CAN-SPAM Act doesn’t apply to most routine business communications.  With CAN-SPAM Act fines of up to $16,000 per violation, this misconception could add up to a big number.

That’s why Internet marketers should avoid 3 blunders that are CAN-SPAM traps for the unwary.

The CAN-SPAM Act

The CAN-SPAM Act of 2003 (CAN-SPAM) promised to provide remedies against annoying and unsolicited bulk email known as “spam”.  Typical of legislation that starts out with limited objectives, CAN SPAM reaches much further than regulating unsolicited, bulk email – and that’s where the blunders come into play.

Before we get to the blunders, let’s review CAN-SPAM’s 5 basic rules as supplemented by amendments enacted in 2008:

• header information (identifiers such as To, From, IP Address): must not be materially false or materially misleading;
• subject line: must not mislead the recipient about a material fact regarding the email’s contents or subject matter;
• return email address: must contain a functioning email address that the recipient can use to request no further messages;
• requests to unsubscribe: if a recipient requests unsubscribe from receiving additional emails, emails matching the unsubscribe request must be honored within 10 days with a mechanism that is available from a single web page and that operates with a single click; and
• contents: the email must (i) clearly and conspicuously identify that it is an ad, (ii) provide clear and conspicuous notice the recipient may unsubscribe for additional emails, and (iii) contain a valid postal address for the sender (may include a valid post office or private mailbox address).

In addition to supplementing the 5 basic rules, CAN-SPAM’s 2008 amendments added an additional rule regarding email newsletters and other emails that have multiple advertisers, contributors, or senders.  Under the new “designated sender” rule, multiple contributors to the email may designate as single sender who must be designated in the From line, and who will be responsible for CAN-SPAM compliance.

“Commercial” emails are required to comply with all 5 of the basic rules, plus the “designated sender” rule.

“Transactional or relationship message” emails are required to comply only with the header information requirement and the “designated sender” rule.

Blunder 1 – CAN-SPAM Applies Only to Bulk Email, Right?

Not true.

Although much of the publicity surrounding the passage of CAN-SPAM focused on regulation of unsolicited, bulk email, there is no minimum number of emails for CAN-SPAM to apply; CAN-SPAM applies to even a single email.

So, if a single email relates to the business of an individual or entity, it’s a “commercial” email and CAN-SPAM applies, and the email is subject to all 5 of the basic rules, plus the “designated sender” rule.

Blunder 2 – CAN-SPAM Only Applies to Unsolicited Email, Right?

Not true.

The Federal Trade Commission (FTC) made it clear that CAN-SPAM may apply to emails that are solicited.  The FTC stated in regulations issued in 2008 that the FTC would view email newsletters that were subscribed to (or solicited by) a person to fall within the definition of a “transactional or relationship message” if the newsletter consists exclusively of informational content or combines informational and commercial content.

So, even if the email newsletter is solicited by the recipient, CAN-SPAM applies; however, as discussed above, as a “transactional” email, the sender is required to comply only with the header information requirement and the “designated sender” rule.

Blunder 3 – Regular “Business-to Business” Emails are Not Covered by CAN-SPAM, Right?

Not true.

The FTC made it clear in 2008 that emails sent in connection with what most businesses view as “business-to-business” relationship emails may also be regulated as “commercial” emails under CAN-SPAM.  For example, the FTC noted that “business-to-business relationship” emails could include mortgage lenders sending emails to brokers with the latest interest rate information or equipment leasing businesses sending emails to equipment vendors regarding rate sheets.

The FTC expressly rejected a request by business leaders to add a “business-to-business relationship message” category to the “transactional or relationship message” category discussed above.  This means that “business-to-business relationship” emails are subject to all 5 of the basic rules, plus the “designated sender” rule.

So, even though this determination by the FTC regarding “business-to-business relationship” emails flies in the face of reason and common business practices, it’s the law according to the FTC.

Conclusion

With CAN-SPAM, as with many statutes, there are unintended consequences that sometimes lead to surprising results.  Nevertheless, strict compliance with the rules involving the 3 blunders is required in order to avoid liability under CAN-SPAM.

Here’s How To Make Sure You, Your Business & Website Is FTC Compliant

By now it should be clear how important it is for you to be FTC compliant. But how can you do that without spending $7,500-$8,000 or more on Internet Attorneys?

Smart business owners around the world are doing it with the help of FTC Guardian.

FTC Guardian is a service that is 100% focused on helping to keep you get and stay FTC compliant and fully protected. And right now, we are offering a free training to give you the knowledge, information, and guidance that you need to stay out of trouble with the Federal Trade Commission.

Free Compliance Workshop: Join Chip Cooper, Esq., the #1 FTC Compliance trainer in the World, for a one-of-kind, completely free online compliance workshop. Workshops fill up quickly, so register now.

Here are some of the things you’ll discover on the training:

• Real-Life Examples of People Who Didn’t Think They Were At Risk, But Who Got Nailed By The FTC, And Why It Could Happen To You, Too

• The 3 Enormous Powers The FTC Has That Can Change Your Life – And Your Family’s Life – Forever!

• How to Avoid FTC Claims When Collecting Leads With Optin Forms

• 3 Privacy Policy Mistakes Every Digital Marketer Is Making, And Why You’re In The FTC Crosshairs.

• And Much More…

Remember: legal protection is a massively important part of your business, and it’s one you cannot afford to ignore any longer.

Go here to register for our next FREE training and make your business is FTC compliant today!

Disclaimer:  This article is provided for informational purposes only. It’s not legal advice, and no attorney-client relationship is created. Neither the author nor FTC Guardian, Inc. is endorsed by the Federal Trade Commission.

By Chip Cooper, Esq

Internet marketers often ask:  Am I liable if any of my affiliates engage in deceptive marketing practices? The answer is, it depends.  This article will provide a checklist of practical points that will help Internet marketers determine what is required for their specific affiliate marketing program and FTC legal forms.

We only have to look to recent FTC cases to learn that affiliate marketers have been nailed for engaging in deceptive marketing practices involving false and unsubstantiated claims, false news reports, untrue claims of test results, and testimonials that were completely fabricated.  And in one recent case, an Internet marketer with ineffective FTC legal forms has held liable for failing to monitor affiliates’ marketing practices.

Internet marketers should understand that the legal violations of affiliates may result in liability for the Internet marketer, particularly where an Internet marketer fails to monitor and terminate affiliates who engage in deceptive marketing practices.  For this reason, it’s absolutely critical that Internet marketers who use affiliates understand how to avoid this liability.

Basic Truth In Advertising Principles

To begin to understand how an Internet marketer may be held liable for affiliates’ deceptive marketing practices, it’s important to understand four basic truth in advertising principles that apply generally to all marketers, including both Internet marketers and affiliates.

• Claims by marketer regarding a product or service that would materially influence a consumer’s decision must be truthful, not misleading, and reasonably substantiated prior to publication. Being truthful is a no-brainer.  However, if the claim is technically true, but it omits a material factor that a consumer would consider, then it would also be deceptive.  And claims about objective, specific results must be substantiated by tests prior to publication or else they’re also deceptive.
• Ditto for claims made endorsers and testimonialists about someone else’s product or service. The same rules summarized above also apply to endorsers and testimonialists who make claims or statements about the products of others.
• If a marketer doesn’t have proof that an endorser’s “success story” experience represents what consumers will achieve by using the product, the advertising copy must clearly and conspicuously disclose the generally expected results in the depicted circumstances. Prior to December, 2009, it was OK to use an endorser’s “success story” endorsement, even if the endorser’s level of success was significantly greater than typical, provided that a “results not typical” disclaimer accompanied the endorsement.   Beginning in December, 2009, the “results not typical” disclaimer will no longer be effective.  Now, a statement regarding the generally expected results is required.
• If there’s a “material relationship” (family or employment relationship or payment or benefits) between the marketer and an endorser or testimonialist that would affect how people evaluate the endorsement or testimonial, it should be disclosed “clearly and conspicuously”.

The Problem With Affiliate Marketers

Affiliate marketers are engaged in performance marketing, meaning that they are compensated on a “performance” basis involving a completed action.  In most situations, affiliates are compensated based on conversions originated through traffic driven to the advertiser’s website.

The problem with affiliates in terms of marketing practices is that their performance-based compensation creates an inverse relationship between maximizing conversions on the one hand, and on the other hand, providing marketing messages that comply with the truth in advertising rules discussed above.

What is Required If You Market Through Affiliate Networks

The FTC requires that Internet marketers have reasonable programs in place to train and monitor their affiliates.

The key question is what is “reasonable” according to the FTC?  The FTC says that what is reasonable varies with the circumstances.  According to the FTC, if the product or service at issue could cause consumer harm – either physical injury or financial loss – then a relatively high level of supervision would be required.  For example, health products may require more supervision than the promotion of ladies hand bags.

Core elements of an affiliate monitoring program should always include:

• Consistent with a marketer’s responsibility for substantiating objective product claims, Internet marketers should explain to affiliates the marketing message regarding the product or service, including what can be said and what can’t be said about the product or service. These explanations should be consistent with the basic truth in advertising principles discussed above.
• Set up and maintain a reasonable monitoring program to determine what affiliates are actually saying about the product or service.
• Follow up with questionable affiliate marketing practices, and terminate affiliates who willfully or repeatedly do not follow the rules.

A recent settlement with an Internet marketer imposed more stringent requirements.

• Clearly and conspicuously disclose in writing to each marketing affiliate that engaging in deceptive marketing practices will result in immediate termination of the affiliate relationship and forfeiture of all monies owed to such marketing affiliate.
• Routinely monitor and review, on at least a monthly basis at times not disclosed in advance to the affiliate and in a manner reasonably calculated not to disclose the monitoring activity at the time it is conducted, affiliate marketing materials, including websites, emails, banners, sponsored search terms, and pop-up ads.
• Promptly and completely investigate any consumer complaint regarding any affiliate.
• Immediately halt the processing of any payments or charges generated by an affiliate that the Internet marketer knows or should know is engaged in a deceptive marketing practice.
• Fully refund, within five business days, each consumer charged by any defendant whose sale originated from any affiliate engaging in a deceptive marketing practice.
• Terminate immediately any affiliate that is engaged in deceptive marketing practices.

Conclusion

Internet marketers who do not monitor and manage their marketing affiliates regarding deceptive marketing practices do so at their peril.   Both the FTC and state regulatory authorities are becoming increasingly more vigilant regarding online advertising and marketing, particularly regarding affiliate marketers.

At the very least, Internet marketers should implement programs consistent with the core elements discussed above.  It remains to be seen whether the more stringent requirements implemented in the recent FTC settlement with an Internet marketer who was actively engaged in deceptive marketing practices himself will also apply to Internet marketers who have no past record of deceptive practices.

Here’s How To Make Sure You, Your Business & Website Is FTC Compliant

By now it should be clear how important it is for you to be FTC compliant. But how can you do that without spending $7,500-$8,000 or more on Internet Attorneys?

Smart business owners around the world are doing it with the help of FTC Guardian.

FTC Guardian is a service that is 100% focused on helping to keep you get and stay FTC compliant and fully protected. And right now, we are offering a free training to give you the knowledge, information, and guidance that you need to stay out of trouble with the Federal Trade Commission.

Free Compliance Workshop: Join Chip Cooper, Esq., the #1 FTC Compliance trainer in the World, for a one-of-kind, completely free online compliance workshop. Workshops fill up quickly, so register now.

Here are some of the things you’ll discover on the training:

• Real-Life Examples of People Who Didn’t Think They Were At Risk, But Who Got Nailed By The FTC, And Why It Could Happen To You, Too

• The 3 Enormous Powers The FTC Has That Can Change Your Life – And Your Family’s Life – Forever!

• How to Avoid FTC Claims When Collecting Leads With Optin Forms

• 3 Privacy Policy Mistakes Every Digital Marketer Is Making, And Why You’re In The FTC Crosshairs.

• And Much More…

Remember: legal protection is a massively important part of your business, and it’s one you cannot afford to ignore any longer.

Go here to register for our next FREE training and make your business is FTC compliant today!

Disclaimer:  This article is provided for informational purposes only. It’s not legal advice, and no attorney-client relationship is created. Neither the author nor FTC Guardian, Inc. is endorsed by the Federal Trade Commission.

By Chip Cooper, ESQ

You’re a Copyright Infringer because of an Infringing Blog Post By Someone Else – And You Didn’t Even Know About It! (That’s Right, You’re Technically Innocent, But Still Liable For Big Bucks!)

The Classic Situation

You’ve got a blog or forum on your website.  After all, Google and other search engines love blogs, right?

And your blog or forum permits your website visitors to post comments.

Unknown to you, a person has stolen (copied without permission) an article from another website.  This amounts to copyright infringement because the wrongdoer has exercised one of the exclusive rights of a copyright owner (the right to copy the work) without permission.

So far, there’s nothing surprising about this result.

But wait.

The visitor then posts the stolen (infringing) article on your blog or forum.  The infringing article is now published on your blog or forum.

Now, it gets really surprising.  Guess what… you’re also a copyright infringer!

Even if you have no knowledge!!

So, let’s recap.  Even though you have no knowledge of the infringement and you’re technically innocent, you’re still liable as a copyright infringer.

And if the copyright owner can prove that you may have had knowledge, you could be nailed for statutory damages of up to $150,000 per work.  Just imagine the pickle you would be in if there were multiple infringing works posted on your blog or forum.

This result may be surprising; however, attorneys understand that copyright infringement is a strict liability offense.

Not so, for the typical Internet marketer or online entrepreneur.

The DMCA Comes To The Rescue With The “Safe Harbor”

To remedy this problem for website operators, Congress passed the Digital Millennium Copyright Act (known as the “DMCA”) back in 1998.

The DMCA provides a so-called “safe harbor” from copyright infringement liability if:

• you provide a special DMCA notice in your Terms of Use, and
• you file a special DMCA Registration Form with the US Copyright Office.

Tip – Strict compliance with the DMCA rules is required to take advantage of the “safe harbor”.

Is the DMCA “Safe Harbor” Bullet Proof?

I am often asked… is the DMCA “safe harbor” bullet proof.  In other words, are you completely safe as a website operator?  No worries?

The short answer is… no, the DMCA “safe harbor” provides excellent protection for website operators, but it’s not bullet proof, according to the 2012 case, Viacom v. YouTube.

YouTube’s users, not by YouTube itself.  YouTube defended based on its reliance on the DMCA “safe harbor”.

The District Court ruled in favor of YouTube in a motion for summary judgment, with the effect that YouTube was protected from infringement liability by the DMCA.  The District Court found that since YouTube had insufficient knowledge of the infringing materials posted on its website, the DMCA “safe harbor” protected YouTube from liability.

The 2nd Circuit noted that there was evidence that YouTube may have had actual knowledge or awareness of infringing activity.

Internal YouTube emails indicated that videos of Bud Light commercials and CNN video clips were believed by YouTube management to be “blatantly illegal”, yet they were left on the YouTube site for a while in order to gain publicity for YouTube.

Based on this and similar evidence of YouTube’s actual knowledge or awareness of infringing activity, the 2nd Circuit held that a jury could find that YouTube was disqualified from the protections of the DMCA “safe harbor”.

As a result, the YouTube case was remanded back to the District Court to determine if there was sufficient evidence for a jury “to conclude that YouTube had the right and ability to control the infringing activity and received a financial benefit directly attributable to that activity.”

Tip – The DMCA “safe harbor” is not bullet proof.  You need to be sure that you don’t have actual knowledge or awareness of infringing activity in order to take advantage of the “safe harbor”.

Here’s How To Make Sure You, Your Business & Website Is FTC Compliant

By now it should be clear how important it is for you to be FTC compliant. But how can you do that without spending $7,500-$8,000 or more on Internet Attorneys?

Smart business owners around the world are doing it with the help ofFTC Guardian.

FTC Guardian is a service that is 100% focused on helping to keep you get and stay FTC compliant and fully protected. And right now, we are offering a free training to give you the knowledge, information, and guidance that you need to stay out of trouble with the Federal Trade Commission.

The training is titled: 3 Tragic (Legal) Privacy Policy List Building Mistakes That Can Get You In Hot Water With The FTC Today – Resulting In Your Business Being Shut Down… And How To Solve It!

Here are some of the things you’ll discover on the training:

• Real-Life Examples of People Who Didn’t Think They Were At Risk, But Who Got Nailed By The FTC, And Why It Could Happen To You, Too

• The 3 Enormous Powers The FTC Has That Can Change Your Life – And Your Family’s Life – Forever!

• How to Avoid FTC Claims When Collecting Leads With Optin Forms

• 3 Privacy Policy Mistakes Every Digital Marketer Is Making, And Why You’re In The FTC Crosshairs.

• And Much More…

Remember: legal protection is a massively important part of your business, and it’s one you cannot afford to ignore any longer.

Go here to register for our next FREE training and make your business is FTC compliant today!

Disclaimer:  This article is provided for informational purposes only. It’s not legal advice, and no attorney-client relationship is created. Neither the author nor FTC Guardian, Inc. is endorsed by the Federal Trade Commission.

By Chip Cooper, Esq.

Scenario: You’re an online retailer, and you’ve got a network of affiliates that are committed to selling your products.  You expect that your affiliates will engage in online advertising to generate sales. Some of your affiliates will purchase keywords for sponsored ads from major search engines including Google and Bing, and some of these keywords may be trademarks of your competitors.

Consequence: The purchase of a competitor’s trademark as a keyword is likely to result in litigation.  

Thus begs the questions: Do your affiliates’ purchases of a competitor’s trademark for sponsored ads amount to trademark infringement?  And if so, will you be held liable for  your affiliates’ trademark infringement?

Keyword Ad Litigation Trends

The practice of selling and purchasing keyword ads that contain competitors’ trademarks continues to be hotly litigated. To date, most of the lawsuits filed by trademark owners have been aimed at the sellers of the keyword ads – the major search engines, primarily Google.

The current trend of the law seems to be that neither the sale of keyword ads using trademarks (by search engines) nor the purchase of these keyword ads (by advertisers) is inherently infringing by itself. The focus now seems to be shifting from the sale and purchase of the keyword ads to the precise wording of the ads generated by the keywords.

To date, there has been little if any guidance from court decisions regarding whether online retailers can be legally liable for keyword ad buys by their affiliates – that is, until the recent case of 1-800  Contacts v. Lens.com decided by a Utah U.S. District Court.       

1-800 Contacts v. Lens.com

1-800 Contacts sued Lens.com for trademark infringement based on purchases by Lens.com and its affiliates of sponsored ads that contained 1-800 Contacts trademarks and variations of them.

The Court ruled that Lens.com was not liable for trademark infringement for its purchase of the keyword ads stating “… that the mere purchase of a trademark as a keyword cannot alone result in consumer confusion”.  Also, the court noted that Lens.com had not used 1-800 Contacts exact trademark, only variations of it.

After dismissing 1-800 Contacts’ claim against Lens.com for Lens.com’s purchases of keyword ads and the wording of the ads the keywords generated, the court turned its attention to the issue of whether Lens.com was liable for its affiliates’ purchases of keywords ads. In its analysis of this issue, the court addressed:

• whether the keyword ads purchased by affiliates were infringing, and
• if so, whether the infringement by affiliates could be used to hold Lens.com. accountable.

Regarding the first question, the court focused on “… not just what keyword was purchased, but what was the language of the advertisement generated by that keyword”. The court ruled that some of the affiliates went too far in their ad copy because they used the exact 1-800 Contacts trademark.  This caused a “strong likelihood of confusion” and therefore infringement.

Regarding the second question, the court ruled that the actions of Lens.com’s affiliates could not be imputed to Lens.com because Lens.com used the Commission Junction affiliate network to acquire its affiliates, and for this reason Lens.com didn’t know who most of the affiliates were and had little direct contact with them.  The court noted that Lens.com had nothing more than “general information” of its affiliates and their activities, and ruled that [Lens.com] therefore cannot be charged with contributory infringement because Lens.com had no actual knowledge or willful blindness based on that information.

Conclusion

The 1-800-Contacts v. Lens.com case is important for keyword ad cases for at least two reasons:

• the court made it clear that it’s about the ad copy, not the ad buy, and
• online retailers won’t be automatically be held liable for infringing ads placed by their affiliates; the result will depend largely on what information the retailer had regarding the identities of the infringing affiliates and their activities,  and what it did (or didn’t do) with that information.

Although this case is not the last word on the issue of a retailer’s liability for keyword ads placed by their affiliates, it does provide some guidance regarding where this emerging trend will lead us in the future.

Here’s How To Make Sure You, Your Business & Website Is FTC Compliant

By now it should be clear how important it is for you to be FTC compliant. But how can you do that without spending $7,500-$8,000 or more on Internet Attorneys?

Smart business owners around the world are doing it with the help of FTC Guardian.

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• Real-Life Examples of People Who Didn’t Think They Were At Risk, But Who Got Nailed By The FTC, And Why It Could Happen To You, Too

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• How to Avoid FTC Claims When Collecting Leads With Optin Forms

• 3 Privacy Policy Mistakes Every Digital Marketer Is Making, And Why You’re In The FTC Crosshairs.

• And Much More…

Remember: legal protection is a massively important part of your business, and it’s one you cannot afford to ignore any longer.

Go here to register for our next FREE training and make your business is FTC compliant today!

Disclaimer:  This article is provided for informational purposes only. It’s not legal advice, and no attorney-client relationship is created. Neither the author nor FTC Guardian, Inc. is endorsed by the Federal Trade Commission.