Venable attorneys Marcella Ballard and Kristen Ruisi recently participated in an MIP Global Trade Mark Forum panel on Responsible Advertising, Social Media and Influencers. With Marcella moderating and Kristen presenting, the panel also included Jessica E. Cardon, deputy general counsel at Quality King Distributors; Lydia Cheuk, deputy general counsel at Away; and Melissa Moriarty, assistant general counsel at VaynerMedia. During their discussion, panelists shared the following insights:
Brands are relying more on influencers, leading to increased FTC scrutiny
Brands consider many factors before deciding what disclosures are necessary
Brands are beginning to formalize their relationships with influencers
Influencers own the content
Brands and trademarks need to be vigilant about their online representation
Kristen spoke about how the FTC is becoming stricter in its enforcement of its guidelines, which strive to prevent influencers from making false claims about products or services they haven't tried and ensure that consumers are aware of advertising relationships. While the responsibility to disclose relationships with the brand they are promoting or endorsing ultimately rests with the influencer, brands still have to work with influencers to ensure they are meeting their disclosure obligations.
These include (i) who the influencer is (i.e., micro-influencers versus macro- or celebrity influencers), (ii) the social media platform, and (iii) the influencers' audience or followers.
For instance, placing a #BrandAmbassador or #PaidAd next to the brand name over the post or image might suffice as a disclosure for a micro-influencer. But when working with major celebrities or macro-influencers, who may not be comfortable with placing hashtags across their posts, brands have to find different ways to ensure compliance with FTC guidelines.
Many brands are now entering into contracts with both "gifted" influencers (those who receive only free products in return for their endorsement) and "compensated" influencers (who are paid by the brand). The panelists pointed out, however, that the sheer numbers of influencers endorsing their products, or requesting to do so, make it difficult for brands to always keep track of influencers who are gifted with products and follow through after the post is made.
The fact that brands don't own, and therefore can't control, the content that their influencers post is another challenge. Furthermore, if an influencer fails to secure the necessary releases from a third party, such as a photographer who holds the copyright for an image, they may be unable to meet their contractual obligations with the brand.
Finally, Kristen outlined the importance for brands and trademarks to take steps to protect themselves in the social media space. From making sure their values align with the influencers they are working with, to ensuring influencers depict their brand and mark correctly, brands must be on alert, she said.