The 10 Marketing & Advertising Issues Every Lawyer Should Know

Panel Presenters Speakers: Tiffany Hall, Vice President, Senior Managing Counsel, U.S. Markets at MasterCard Karen Ressmeyer, Associate General Counsel, Marketing & Prime at Amazon Cynthia Jon-Ubabuco, Assistant General Counsel, Director - Enterprise Privacy at Bank of America Moderator: Danielle Ochs, Shareholder, Ogletree Deakins, P.C. The 10 Marketing / Advertising Issues Every Lawyer Should Know

#1 Intellectual Property The Big Three 1.Copyright o Works of authorship, such as text, music, photos, and video. 2.Trademark o Word, symbol, phrase that distinguishes the source of a good or service. 3.Right of Publicity o Right of an individual to control the commercial use of his or her name or likeness. The 10 Marketing / Advertising Issues Every Lawyer Should Know

#2 Direct Mail No statutory opt out right or requirement under existing laws. “Nonmailable” matter. Company-specific “Do Not Mail” representations. The 10 Marketing / Advertising Issues Every Lawyer Should Know

#3 Telemarketing Myriad laws & regulations o TCPA, TCFAPA, TSR, state Do not call o Federal, state, company-specific Seller registration Dialing technology restrictions Consent requirements No abusive practices Disclosure requirements The 10 Marketing / Advertising Issues Every Lawyer Should Know

#4 Contests & Sweepstakes Regulated by federal and state laws o Sweepstakes = Chance based o Contests = Skill based o Lottery = Prize + Chance + Consideration - Must remove 1 of the 3 elements. The 10 Marketing / Advertising Issues Every Lawyer Should Know

Valuable marketing tool. Compliance triggered when brand /company distributes s to consumers. What is required? o Headers must be clear and accurate o Subject lines must not be deceptive o The message must be clearly identified as an ad o The location of the sender should be noted in ad o Provide an opt out/unsubscribe option Ongoing Compliance o Recipient list opt out maintenance o Hiring third parties to handle marketing for your business #5 Marketing The 10 Marketing / Advertising Issues Every Lawyer Should Know

Autodialer Technology o Use of to dial cell phones prohibited without prior express written consent o Definition of prior express written consent o What about on-demand fulfillment messages? CTIA Shortcode Guidelines o What’s a shortcode? o Distinction between single & recurring program o Shortcode program requirements o Message content requirements Certain states impose greater restrictions on mobile marketing messages. #6 Text Message Marketing The 10 Marketing / Advertising Issues Every Lawyer Should Know

o Advertisers and endorsers/influencers must disclose material connections between them. o Payment or other incentive (such as money, a product, a gift, etc.) = material connection. o Can use #ad, #sponsored, #sweepstakes, #advertisement to disclose connection. #8 Social Media Endorsements The 10 Marketing / Advertising Issues Every Lawyer Should Know

Proximity o Information in close proximity to claim it qualifies? Placement o Placement of information in location where consumers will be expected to look? (hyperlinks & pop-up disclosures). Prominence o Disclosure prominent enough to draw notice? (e.g. size, color, graphics) Presentation o Information presented in easy-to-understand format that does not contradict other messages presented with service. #7 Dot.Com Disclosures The 10 Marketing / Advertising Issues Every Lawyer Should Know Online disclosures should be clear & conspicuous:

May be special rules or self regulatory guidelines for advertising /marketing Financial Services o Financial Industry Regulatory Authority o SEC Advertising Rules o Municipal Securities Rulemaking Board and o Securities Investor Protection Corporation advertising rules Alcohol Beverage Industry o DISCUS Guidelines for Advertising and Marketing #9 Highly Regulated Industries The 10 Marketing / Advertising Issues Every Lawyer Should Know

Joint marketing initiatives o Not for profit organization and commercial entities (commercial co-venturer laws) Use of “ natura l” for consumer products Celebrity endorsements Native advertising #10 Marketing & Ad Trends The 10 Marketing / Advertising Issues Every Lawyer Should Know