Ok i've got a question: what if affiliates complied by not referencing to or utilizing any intellectual property they don't own (AND make a full disclosure visibly) on their landing page but the offer affiliates promote doesn't comply (as the advertiser infringes intellectual property violation) will affiliates take the blame as well?
Compliant affiliates promote incompliant advertiser. Will affiliates be liable too?
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This is becoming a disturbingly frequent response to questions posted on wickedfire.
A knowledgable lawyer posting on this forum could make serious bank right now.
Dozier is on the ball in regards to affiliate marketing:
Dozier Internet Law - Affiliate Attorney
I would suggest speaking with them.
Dozier Internet Law - Affiliate Attorney
I would suggest speaking with them.
Even though some tell me this firm is overpriced, Venable LLP has ex-FTC lawyers who could offer terrific advice.
EDIT: One such partner, Gary D. Hailey, has a Harvard JD and "Recently, Mr. Hailey has defended Federal Trade Commission investigations involving dietary supplements and other consumer products."
http://www.venable.com/gary-d-hailey/
EDIT: One such partner, Gary D. Hailey, has a Harvard JD and "Recently, Mr. Hailey has defended Federal Trade Commission investigations involving dietary supplements and other consumer products."
http://www.venable.com/gary-d-hailey/
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At the end of the day, the FTC does not distinguish between Advertiser, Advertising Network, Marketer or Affiliate Marketer. They all have the same liability when it comes to deceptive marketing and unsubstantiated claims. They just don't have the resources to prosecute everyone currently.
This is one of the big reasons that major advertising networks (ie: Google) are stamping out certain types of promotions.
If your "marketing" approach is to try and trick your visitors into taking a free trial that doesn't disclose the continuity, be prepared for a short lifespan.
There will be people that are made examples of. These will most likely be the highest volume affs.
Affiliate Networks are already taking this more seriously since FWM Labs was hit with a lawsuit and the douchebags there immediately threw all the networks under the bus saying it was their affiliates that were doing the deceptive marketing.
What do you think the CPA Networks who want to stick around are going to do? They're going to have to clamp down or face the same scrutiny and legal problems.
That being said, if you're doing volume and using crutch marketing, a legal team is not a bad idea. In my opinion anyways.
This is one of the big reasons that major advertising networks (ie: Google) are stamping out certain types of promotions.
If your "marketing" approach is to try and trick your visitors into taking a free trial that doesn't disclose the continuity, be prepared for a short lifespan.
There will be people that are made examples of. These will most likely be the highest volume affs.
Affiliate Networks are already taking this more seriously since FWM Labs was hit with a lawsuit and the douchebags there immediately threw all the networks under the bus saying it was their affiliates that were doing the deceptive marketing.
What do you think the CPA Networks who want to stick around are going to do? They're going to have to clamp down or face the same scrutiny and legal problems.
That being said, if you're doing volume and using crutch marketing, a legal team is not a bad idea. In my opinion anyways.
Then folks like Yahoo are also directly liable for accepting and running these ads on a CPA/CPM? Especially a CPA they had their own capital at risk.
Personally I feel those stepped on will be a) the affs who were ridiculously over the line and using trademarks to imply endorsement not at all discreetly, and b) those conducting the BILLING, which is what I believe a lot of this outside concern stems from.
I don't know why people keep bringing this up, is reading comprehension really that hard to come by these days? Or are you going by the businessweek article that used suggestive subtitles?
But in an interview earlier this summer, Weiss told BusinessWeek that he didn't write his own ads. Instead, he said, he worked through networks of "affiliates," which he paid to spread the word about FWM's products through Google (GOOG), Yahoo! (YHOO), and other sites. Weiss said that his employees kept an eye out for inappropriate celebrity endorsements and he asked the affiliates to pull those ads.
= Throwing affiliates under the bus?
Especially since that's the case? You know, them not doing their own marketing? Or did you expect them to publicly state that they are fine with people using trademarks or exaggerated claims and they really couldn't care less?
The point was, when the government came down on them, they pointed the finger at the CPA Networks. No accountability. Doesn't matter, that business approach with non-disclosure of continuity, incorporating in Greece, etc is dying.
If you are making money on the process, yes you can be included on the law suit. Anyone who has profited from the non-compliant promotion is at risk. You are at less risk, but I know of companies that have gotten whacked because of their product and the claims they made, the FTC went after the phone center, shipper, processor, media buyer and the web company - anyone that made money. A good idea is to get an email where the network or client states that they approve the content, layout and language used to promote their product and that it is compliant with their standards - it won't save you if they really want to whack you, but can't hurt to have.
My company currently uses Venable LLC and they are very knowledgable with the web and FTC. They also aren't the typical lawyers, they understand that boundaries need to be pushed. They are expensive.
My company currently uses Venable LLC and they are very knowledgable with the web and FTC. They also aren't the typical lawyers, they understand that boundaries need to be pushed. They are expensive.