Is There A Marketing Loophole When It Comes To Up-Voting Amazon Reviews?
The ever-evolving nature of online business is a source of both excitement and exasperation for entrepreneurs. Boundaries are repeatedly being pushed, often pitting pioneers against the proverbial “powers that be.”
Take, for example, the semi-recent Amazon review changes. A few months back, a tornado barreled through the e-commerce industry: Amazon had banned incentivized reviews. No longer could sellers offer free products in exchange for honest feedback. Ostensibly, the move hurt companies relying on the technique for product launches.
But instead of throwing in the towel, marketers did what they do best…adjusted. Many started offering “list optimization” and “list maintenance” services. How did the new system work? Promotions experts enlisted users to up-vote helpful reviews; instead of writing posts, operatives boosted positive reviews.
It was a genius approach; because if you look closely at Amazon’s interface, a question sits at the bottom of each review: “Was this review helpful to you?” Nowhere does it indicate that review-rating is dependent on product purchase. After all, (and theoretically), reviews are tools for potential buyers — and potential buyers find some reviews more helpful than others during the decision making process.
Regardless, Amazon insists its algorithms unearth these types of up-vote networks. “We have machine-learned processes to detect inauthentic customer insights including the manipulation of helpful votes and will ban vendors, sellers, and reviewers who are found to be out of compliance with our policies,” explained a spokesperson for the company.
Marketing Blackmail: Sabotaging A Listing To Drum Up Business?
The scenarios can get nastier still, according to one merchant who markets skin-care products on Amazon. Asking not be identified for fear of retribution from these vendors, the merchant said his product was a best-seller on Amazon in mid-April, when shoppers were scooping up 450 units a day.
Earlier this month, however, he noticed that all of the negative reviews — about eight of them — were on the top of his page, though the vast majority of his reviews were positive.
The merchant reached out to a “list optimization” vendor who’d previously sent him an e-mail advertising its services. The vendor, whose company the merchant declined to identify, offered to “clean up” his problem for $350 or to provide “listing maintenance” for $1,000 a month.
The skin-care merchant declined the services. The next morning the number of negative votes climbed to 160. On the following day it was 260.
The vendor called him back and suggested that one of the merchant’s competitors — whose positive review votes had, maybe not coincidentally, risen by a lot — was responsible for the negative votes.
The vendor reiterated his offer, upping the cost to $2,000 because the problem had grown exponentially. The vendor also offered to “screw the competitor’s site” according to the merchant.
Blackmailing businesses, via fake review manipulation, undermines “truth-in-advertising” standards and various Federal Trade Commission “unfair and deceptive” marketing rules. If someone is unfairly attacking your website or product listing, in this manner, let’s talk. Our team has helped hundreds of businesses with online review issues of this nature.
Amazon sues over fake reviews, and actively engages courts to enforce its “zero tolerance” stance. Recently, the company filed yet another lawsuit against several phony feedback facilitators.
Amazon Sues Over Fake Reviews
In the past year alone, the online retailer has already sued hundreds of businesses and individuals who create and deploy fake reviews. (You can read about other instances here, here, and here.)
Why Does Amazon Hate Fake Reviews?
Amazon — (and the Federal Trade Commission, for that matter) — views fake reviews as an act of unfair competition. Or, in legalese, buying fake reviews violates Section 5 of the FTC Act because the practice qualifies as an intentional attempt to mislead consumers.
Amazon explained its position to TechCrunch
“Our goal is to eliminate the incentives for sellers to engage in review abuse and shut down this ecosystem around fraudulent reviews in exchange for compensation. As long as this type of abuse exists, we will continue to take enforcement and legal action against sellers participating in fraudulent reviews.”
Discount-For-Review Programs Are Also Against Amazon Policy
The news comes in the wake of Amazon’s announcement to purge the site of incentivized reviews (exception: books).
What does this mean for e-commerce entrepreneurs? In all probability, traditional advertising will make a triumphant comeback.
Is Amazon Hamstringing Startups?
In addition to investor cynicism, Amazon’s recent crackdowns have sparked a concern flame in the e-commerce industry. Is Amazon, in a way, raising the barrier of entry way too high, by ultimately forcing startups to outlay a larger initial marketing spend?
Fake Reviews v. Discount-For-Reviews: Both Are Now No-Nos on Amazon
What is the difference between fake reviews and discount-for-review programs? The former conspicuously violates Federal marketing regulations; the latter is (perhaps, it’s now more accurate to say, “was”) an enormously helpful startup marketing tool — which also spawned an entire promotional services niche, feedback facilitation.
Or, to put it simply: discount-for-review programs helped grow the online business economy.
Difficult But Necessary?
On account of Amazon’s no-holds-barred approach to exterminating solicited reviews, a big e-commerce question now looms: Do Amazon’s actions fall into the “difficult-but-necessary” category? Did company quants crunch numbers and discover that its third-party selling programs were ballooning at a breakneck — and unsustainable — speed, flooding the platform with potentially problematic digital detritus?
Because here’s the thing: Amazon is currently the top-dog, and as such, greatly exposed. It must be careful. Other online retailers are patiently crouching in the tall weeds, waiting for the perfect opportunity to pounce — and that opportunity could be Amazon’s deteriorating respectability. After all, if the platform becomes synonymous with counterfeit goods and phony reviews, the public will start to look elsewhere.
Adjust To Survive
Now, does all this news spell doom and gloom for FBA sellers? No. Surviving amounts to adjusting. Brands and marketers should consider:
Launching products at a low price, along with a well-executed customer satisfaction email campaign, which encourages consumers to leave reviews.
Readjusting budgets to include other types of “Off Amazon” marketing efforts.
The Legal Lowdown On Pokémon Go Lawsuits & Marketing Tactics
Originally Posted: Tuesday, August 30th, 2016
The micropayment miracle, Pokémon Go (PoGo), currently holds the prize belt for “most popular game of all time,” and in short few months, it’s raked in over $210,000,000. Market experts expect revenues to hit $1.1 billion by year’s end, and savvy brick-and-mortar businesses are PoGo promoting — to huge success.
But, dear reader, don’t be lulled into submission! The Pokémon Go story is NOT all smiles and profits. [DUN, DUN, DUN!]
Oh yes, there’s the dark side of Pokémon Go. The side that’s spawned a PoGo disaster map; the side that’s raised get-off-my-lawn stakes to lawsuit level; the side that has people wondering, “Can I sue Pokémon or Nintendo for injuries sustained in the line of PoGo battling!?”
Is Pokémon Go ushering innocents down a dangerous personal injury path? And if so, can the game’s maker be held liable? Moreover, what legal aspects must be considered when promoting a business through PoGo?
Let’s examine this mobile gaming phenomenon, with legal scalpels.
Pokémon Go Lawsuits
Nintendo aims to “put smiles on people’s faces.” Yet, not every civilian is grinning over Pokémon Go. In fact, two households have definitely NOT caught the PoGo craze; instead…they’re filing Pokémon Go lawsuits — alleging nuisance and unfair enrichment.
Get Of My (St. Claire Shores, Michigan) Lawn
The Place: Wahby Park, St. Claire Shores, MI. A point of pride in a middle class enclave, Wahby is a public recreation area that doubles as a Pokéstop and Poke gym.
The Problem: People who live near Wahby aren’t happy. They claim Poké players are driving on private lawns, parking on public streets, tearing up gardens, and…looking at them! One resident lamented, “I don’t feel safe sitting on my porch!” Another referred to the situation as “a nightmare.” Someone else said she was “afraid to go to sleep,” and a man cursed his lack of prescience, lamenting: “If I knew [Pokémon Go] was coming, I’d have sold my place two months before it got here!”
An online anti-PoGoer warned the game was “ruining the quality of life for many Americans,” and a seemingly committed jingoist, who clearly isn’t a free market proponent, cautioned, “It’s a form of destrictive [sic] society, designed by the Chinese. And it’s a shame [Pokémon Go Players] have the power to vote, because it seems that they are easily brain washed. Which could lead this country to it’s [sic] destruction.”
Local Solutions?: Several residents near Wahby Park did seek redress with the city council — and the council did take steps to remedy the situation, like increasing signage, blocking off private roads, and increasing nightly police patrols. Apparently, however, the measures didn’t satisfy one couple who is moving forward with a Pokémon Go lawsuit.
The Lawsuit: One of the disrupted homeowners is suing Niantic, Inc., The Pokémon Company, and Nintendo Co. Ltd. for “nuisance and unjust enrichment.” Why unjust enrichment? Well, the plaintiffs feel that their lawn, being so close to a public park, has helped PoGo become a financial phenomenon. Plus, the lawsuit “seeks to stop designating GPS coordinates on or near private properties without permission.”
Local Opposition: Some Whaby Park Pokémon players are side-eyeing the plaintiffs. One young father interviewed for a local television station explained his viewpoint:
“For the majority, for the mass populous that comes here to play Pokémon, they’re here to have fun and enjoy the nature and meet cool people. We’re not trying to trespass anybody.”
Likely Outcome: Will the homeowners win? Believe it or not, they have a sliver of a shot. There’s a legal standard known as the “attractive nuisance doctrine,” which says homeowners can be held liable for a child’s death or injury if:
The landowner keeps something potentially dangerous on their property (i.e., broken car on lawn, trampoline, pool without fence (in some jurisdictions)).
The landowner knows children are around who might trespass.
The landowner knows that something on their property may endanger trespassing children.
The children are too young to recognize the risk.
The landowner can fix the problem at a reasonable cost.
The landowner does nothing.
Now, this lawsuit isn’t directly related to children harmed by Pokémon Go, but attorneys could argue that Niantic and Nintendo should have foreseen PoGo’s negative consequences. It’s a stretch, but not an impossibility.
That said, PoGo’s terms of service includes an arbitration clause that, in part, reads:
“[D]isputes between you and Niantic will be resolved by binding individual arbitration, and you are waiving your right to trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding.”
Does that mean nobody can ever sue Niantic or Nintendo? Nope. Because also embedded in the ToS is a stipulation allowing customers to opt out of the arbitration clause, via email, within 30 days of downloading.
So, bottom line: who will likely win this Pokémon Go lawsuit? If we’re hypothetically trading Vegas odds, then sure, Niantic and Nintendo probably win this one. But you never know. At this point, we cab only be sure that the Courts and clerks are tackling the issue.
Pokémon Go Marketing: Ideas & Legal Considerations
Marketing gurus agree: If you’re a brick-and-mortar business that isn’t using PoGo to lure customers (pun intended), then you’re missing out on…well…money. As one Reddit user urged, “[Using Pokémon Go to promote] is the greatest investment you can make right now.”
So, how are business owners putting PoGo to work?
Bars, pubs and restaurants are becoming Poké gyms, then offering discounted drinks for members of the team that holds the gym.
Animal shelters are encouraging people to pick up dogs to walk while they’re out for Poké play, which has led to an increase in pet adoptions (Nice!).
Creating power stations for “phone refueling.”
Following the game and using social media to advertise when a rare Pokémon is in an establishment.
Are the promotions working? Heck yeah! As another Reddit user succinctly said, “[Pokémon promotions brought him] SO. MUCH. FOOT. TRAFFIC.”
“Put down a lure and watch the customers flow in,” advised another.
Tips To Avoid Pokémon Marketing Pitfalls
Account Security: Pokémon Go registration means handing over access to your entire Google account. Though Niantic does a wonderful job at keeping secure, the threat of a breach still lurks. Consider creating a new e-mail for your Pokémon Go marketing efforts in case disaster does strike.
Malware Concerns: Malware is starting to spread throughout the Pokéverse. Avoid risk by downloading from a reputable source.
Play Nice: Don’t try to sabotage a competitor’s PokéMojo. What do we mean? The app includes a Pokéstop and Poké gym removal form. So, let’s say Frank is in direct competition with Mary. They both own and operate ice cream parlors on Main Street. Being a gamer, Mary adopted Pokémon Go early and started using it to promote her business. It didn’t take long for her shop to become both a Pokéstop and a Poke gym. Frank, saw the amount of foot traffic Mary’s Poké-efforts garnered — and he didn’t like it. One day, when feeling particularly spiteful, Frank decided to sabotage Mary’s success by submitting a Pokéstop / Poké Gym removal request for Mary’s business. Frank’s actions could be considered unfair and deceptive marketing, and he could be fined — heavily — by the FTC. (And so can you, if you “pull a Frank.”)
Expect to read a lot about Pokémon Go lawsuits over the next several months. But the question remains: will the PoGo craze outlasts the lawsuits it spawns? Only time has the answer.
Price Anchoring: What Is It and Why Sellers Shouldn’t Do It
Originally Posted: Monday, April 25th, 2016
Online clothing store Zulily caught a class action, courtesy of New York Attorney General Eric Schneiderman. The alleged offense? Price anchoring.
What Is Price Anchoring?
What’s a sly way to make consumers think they’ve stumbled upon a once-in-a-lifetime, can’t-pass-up, incredible steal of a deal? Easy: advertise an inflated original price and promote the MSRP (manufacturer’s suggested retail price) as a *sale* price.
The practice is called price anchoring, but it’s against regulations.
Online Retailer Hit With Price Anchoring Charge
Excerpt from class action filing against Zulily:
“In some instances, they represented that the listed or original price was two or more times the manufacturer’s suggested retail price (‘MSRP’), and then offered the item at a purported 50 percent or more discount price, which was in fact the original MSRP.”
Sound byte from New York Attorney General about case:
“This case sends a clear message that our office will hold businesses accountable when they use false or misleading advertising practices to deceive consumers.”
Price Anchoring Has Been Around Forever
Price anchoring is as old as marketing itself. Shop owners learned early that the mere illusions of massive sales were enough to entice customers. And back in the day, few laws prohibited the practice; but regulators eventually caught on and disavowed the practice.
It’s Fine To Compare Prices; It’s Not Fine To Lie About Prices
Comparing prices is fine. But lying about an MSRP amounts to false advertising (some people call it price scheming). According to the FTC, lying about costs is an unfair business practice.
Do You Know The Name Of A Private Label E-Commerce Lawyer?
Top-rated — yet affordable — Kelly / Warner works with e-commerce entrepreneurs.
Our team assists with:
Price anchoring legalities;
FTC / FCC / FDA marketing compliance;
Civil law counsel;
Counterfeit and “hijacking” incidents;
Intellectual property issues;
Promotional and product governance; and
Problematic consumer reviews.
A Little About Our Internet Law Practice
Want to know a little more about us? We’re a lean, but successful, boutique law firm that concentrates on Internet business issues.
Aaron Kelly, Esq.: Founding partner — and self-described gearhead — with a 10-out-of-10 on AVVO.com and a preeminent AV rating, Aaron love to help entrepreneurs and startups with everything from business formation to fighting against unfair competition tactics.
Daniel Warner, Esq.: Founding partner and certified egghead (he did receive one of the highest multi-state bar exam scores), Daniel Warner is the guy businesses want on their side. Exceptionally disciplined with a photographic memory, Dan is an incredible litigator who’s won his share of David v. Goliath cases.
Raees Mohammad, Esq.: Partner and academically recognized scholar, Raees is the firm’s online privacy aficionado. He’s also a corporate governance maestro and deft at crafting emerging business strategies. (Oh, and, we’re pretty sure he’s a graduate of James Bond’s little-known — but highly elite — School of Smooth.)
“Zulily Not the First Retailer Sued for Alleged Price Anchoring.” Legal Newsline. 25 Mar. 2016. Web. 25 Apr. 2016. <http://legalnewsline.com/stories/510701888-zulily-not-the-first-retailer-sued-for-alleged-price-anchoring>.
New Alibaba Counterfeit Crew Hopes To Curtail Phony Products Problem
Originally Posted: Monday, February 8th, 2016
Is counterfeit activity on Alibaba.com about to diminish? Alibaba hopes so.
Headquartered in China, and an essential ecommerce cog, Alibaba.com is an online souq of product sourcing, selling, and negotiating.
Recently, Alibaba announced plans to fatten its fraud department. Alibaba announced plans to fatten its fraud department.
Alibaba’s Piracy Past
In 1999, Jack Ma had his “a-ha” moment: Connect Chinese manufacturers with overseas buyers – online. And abracadabra, Alibaba.com was born. By 2012, financial analysts were valuing the company at about $150 billion.
But everything wasn’t red dragons and lucky koi. Though profitable, Alibaba was also morphing into a piracy bazaar.
The counterfeit crisis reached critical mass in the late noughties when U.S. trade officials granted Alibaba and its eBay-esque component, Taobao Marketplace, a spot on the “Notorious Markets” list.
About ten years ago, Alibaba kicked some pirates off the ship. Officials awarded the company by lifting the blacklist censure.
Now a seasoned, publicly traded Wall Street player, today’s Alibaba is a far cry from its earliest iterations.
Sure, Alibaba’s stock fluctuated in 2015, but pundits aren’t surprised, predicting that Alibaba – like Google, Facebook, Amazon, and eBay – is still a formidable online business force.
Why Are U.S. Officials Once Again On Alibaba’s Case? And, What Is Alibaba Doing About It?
Perhaps at the behest of the MPAA and RIAA, some U.S. lawmakers are apoplectic about piracy. For years, they’ve tried to lard federal law books with draconian, outdated intellectual property statutes. It’s yet to work; but not for lack of effort – nor lobbying dollars.
The Government’s Online Piracy Blacklist
To buoy anti-piracy efforts, in 2006, the Office of the United States Trade Representative (USTR) created an official “naughty pirate” list. Called the Notorious Markets Blacklist, the report adumbrates communities – both online and off – where *pirates* congregate and flourish; being listed can lead to financial hardship.
The USTR is throwing a skeptical side-eye at Alibaba and threatening to pin a scarlet “P” on the company.
In fact, Alibaba once held a sport on the Notorious Markets Blacklist, but redeemed itself in time for a 2014 IPO. However, the USTR is once again throwing a skeptical side-eye at Alibaba and threatening to pin a scarlet “P” on the company. Presumably in response, Alibaba executives hired 200 new employees to slash and burn Alibaba counterfeit problem accounts.
Got Alibaba Counterfeit Problems? Speak To An e-Commerce Lawyer
Do you need to speak with an e-commerce attorney? The top-rated lawyers at Kelly / Warner have helped hundreds of entrepreneurs overcome legal challenges. We craft fresh solutions to common problems and help keep our clients on top.
Our private label lawyers can answer Alibaba counterfeit questions and help solve issues related to:
A Quick Background Summary of the Mehta v. Kneen Cybersquatting Laws Case
Kneen, a U.K.-based programmer, bought workbetter.com in 1999.
More recently, Harsh Mehta, an office sharing startup co-founder, bought workbetter.us to market his service.
In April 2014, Mehta approached Kneen about buying workbetter.com; he offered $500; Kneen ultimately refused and declined to sell his domain.
Sometime around the failed domain sale, Mehta initiated the USPTO trademark application process for “Work Better.”
Shortly after Mehta started the official process, according to Mehta, one of his “over-zealous” employees allegedly tried to get workbetter.com at the registration level. Twitter apologies were offered and accepted over the incident. At that point, most people assumed the workbetter.com domain battle was over.
But then Mehta filed a cybersquatting lawsuit against Kneen over the desired domain.
Tech industry pundits buzzed about this cybersquatting laws case (including yours truly) — probably because it was possible for people to appreciate both parties’ arguments.
Judge on Mehta v. Kneen Cybersquatting Lawsuit: “This is a really bad one.”
Unlike us in the peanut gallery, Judge Lewis Kaplan saw no ambiguity. “However you slice it, there are good cybersquatting cases and there are bad ones. And this is really one of the bad ones,” Kaplan stated in his ruling. He went on to explain his position:
The balance of hardships in my view, if it cuts in any direction cuts in favor of Mr. Kneen because an injunction could threaten to interfere with a perfectly lawful and appropriate course of business in which he’s been engaged since 1999, all at the behest of somebody who appears to have a — who quite obviously just went out and registered a mark that he undoubtedly knew was nearly identical to the domain name registered and used by the plaintiff for many years for perfectly legitimate reasons.
Plaintiff Didn’t Prove “Bad Faith Intent To Profit”
Mehta allegedly knew that Kneen owned workbetter.com but tried to register the mark anyway. For his part, Kneen had not – and at the time of this writing has not – violated any regulations in relation to the domain. As such, according to current U.S. intellectual property standards, in theory and praxis, Kneen isn’t doing anything wrong.
To put another way: if a URL isn’t being used to parasitically profit off another brand’s mark, owning a dormant URL isn’t necessarily a violation of trademark law.
If a URL is not being used to parasitically profit off another brand’s mark, owning a dormant URL isn’t necessarily a violation of trademark law.
To Win A Cybersquatting Lawsuit, Plaintiffs Must…
To win an online copyright or trademark lawsuit, plaintiffs typically must prove, at the very least, that the defendants:
Were using their marks – or ones confusingly similar;
Profited from the use of the contested marks; and
Acted in bad faith.
Owning A Domain For A Long Time Worked In Favor of The Defendant (This Time)
Since Kneen owned the URL long before Mehta had an interest in it, under sui generis circumstances, the judge ruled that Kneen did not act in bad faith by refusing to sell the domain. Moreover, in this case, the court reasoned that any future sale of the domain would fail to contravene Mehta’s trademark since Kneen bought it almost a decade before Office Space Solutions came into existence.
Speak With Someone Who Understands Cybersquatting Law
Cybersquatting laws are nuanced. Kelly Warner attorneys are exceptionally well-versed in domain disputes and other online intellectual property legalities. Our cybersquatting law attorneys:
Help clients secure, register, and defend trademarks and copyrights – both online and off;
Settle domain disputes;
Work with clients on UDRP petitions;
Act as both plaintiff and defense counsel for intellectual property litigation; and
Conduct research for startups and established businesses.
Get in touch. We’ll do our best to change your mind about lawyers and help protect your intellectual property – online and off.
Cybersquatting Case Law: Warehousing Domains
Originally Posted: Tuesday, July 21st, 2015
Programmer Buys Domain In The 1990s; Startup Wants It In 2014.
Sixteen years ago, a London-based programmer, Jason Kneen, purchased the domain workbetter.com.
Fast forward to 2014. According to reports, Kneen was contacted by Harsh Mehta, the entrepreneur behind OfficeLinks; he wants to buy workbetter.com. To promote his company, Mehta had already bought workbetter.us and was looking to obtain the higher-profile .com domain. The OfficeLinks co-founder offered Kneen $500, but for various reasons, the programmer ultimately turned down the deal.
After negotiations stalled, in April 2014, Mehta filed an intent-to-use trademark application for the phrase “Work Better.” Then, in June, Kneen caught wind that someone was trying to do a domain transfer on the URL. Turns out the would-be domain interloper was, as Mehta would later explain, one of his “over-zealous” employees. Whatever the case, at the time, Mehta and Kneen appeared to have “made up” on social media.
Startup Files Cybersquatting Lawsuit Over “Warehoused” Domains
Later in the same month, DomainNameWire contacted Kneen, which is allegedly how he learned OfficeLinks was suing him for cybersquatting. Apparently, as a result of the lawsuit, Kneen’s domain name provider locked the URL during proceedings.
In a public statement, Mehta explained his position:
“This is a dispute between a company that is trying to protect its trademark, and make genuine use of it, and an ideology that entitles individuals (and businesses, including Jason Kneen’s) to hijack existing and prospective trademark registrations for $18/year.”
Interesting Case; Tough Call
This domain dispute is worth following for a couple of reasons.
Both parties are fairly well-known in the tech and startup communities.
At this point, on July 3, the domain is still in limbo with Kneen refusing to sell and Mehta’s lawsuit hanging over Kneen. The unfortunate thing about the case is that both parties are Internet natives and, Mehta especially, part of the startup ecosystem. While cybersquatting situations are frustrating, this is not the case of someone trying to grab Sony.com in the early days of the Internet. Kneen decided he didn’t want to sell and Mehta, in short, is using the legal system to ensure an outcome beneficial to himself.
Got Questions About Cybersquatting Cases? Consult A Domain Dispute Lawyer.
Kelly Warner is an Internet law firm that has successfully handled dozens of domain disputes and cybersquatting lawsuits. A top AV-rated firm, our attorneys enjoy a high success rate. To read more about cybersquatting case studies, head here. To learn more about Kelly / Warner’s Internet law practice, click here. If you’re ready to schedule a consultation, please head here.
Kelly Warner’s domain dispute lawyers have successfully handled all manners of cybersquatting cases. We’re aware of all the trap doors and potential sink holes parties can encounter when pursuing domain claims.
Legal Lessons 101: Can I Get An Injunction?
Originally Posted: Monday, July 20th, 2015
Occasionally, aggressive business competitors may cross legal lines when elbowing their way to #1 — and injunctions can come in handy. So, let’s review a few “injunction law” basics. If you still have questions when we’re done, get in touch.
Real Talk: Injunctions Are Tough To Get
Before you start the injunction process, it’s important to understand one thing: injunctions are tough to get. Why? Simply Stated: free speech and fair competition are are the philosophical cornerstones of the U.S. marketplace. Courts are exceptionally cautious about dolling out injunctions that could impede another party’s First Amendment rights or free market ambitions.
What You Must Prove To Get An Injunction
You may be thinking: “What must I prove to successfully motion for an injunction?”
The answer isn’t simple – because litigation strategies are largely dependent on the details. That said, we’ve outlined some “ballpark” parameters regarding the acquisition of either a temporary or permanent injunction related to unfair competition, defamation or unfair and deceptive marketing.
#1: Ongoing Damage
To get a content removal injunction, the requesting party must convince a judge that failing to remove the content will cause ongoing damage.
#2: Probability of Success
As stated above, judges don’t hand out court orders willy-nilly. Instead, to get an injunction, judges must be convinced that you will most likely win the lawsuit associated with the request.
#3: Keeping the Information Published Will Cause Great Harm “In the Absence of Preliminary Relief”
If a published statement is likely to cause long term harm if not removed, the statement may be a candidate for an injunction action (if the other tests are also met). To win this point, plaintiffs must demonstrate how the statement will cause actionable harm and why temporal concerns are likely to exacerbate said harm.
#4: The Public’s Interest Is Best Served by Granting an Injunction
Laws protect citizens’ interests. So, for a court or judge to grant an injunction, the potential impending harm must be detrimental to the public’s best interest in some capacity.
Questions? Speak With An Unfair Competition Lawyer About Your Chances Of Securing An Injunction
Do you have more questions about how to get an injunction? If yes, contact the online reputation and removal lawyers at Kelly Warner. We’ll review the details of your situation and provide potential solutions.
Scam Targeting Web Designers and Developers
Originally Posted: Tuesday, July 14th, 2015
ATTENTION WEB DEVELOPERS & DESIGNERS: Scammers developed a new scheme targeting Web designers and developers. We’ve outlined the con below. Take 2 minutes to make sure you’re not a target.
Web-Designer-Scam Red Flags
Initial Contact: Perpetrators of the web-designer-scam usually initiate contact via an email originating outside the United States. The sender usually inquires about services and includes a link to an example website.
Air of Legitimacy: What makes this scam particularly lucrative is that the initial inquiry seems legitimate.
Poor Grammar: Though the emails may seem valid, people who’ve been duped noted that the emails were grammatically questionable.
No Direct Response: One of the biggest red flags is the inquirers’ refusals to return your emails or address any questions. They’ll only initiate emails, dictating parameters. This is probably because it’s a semi-automated scam.
Inquirer Controls Terms: They may tell you a money order is coming as a deposit and that they’ll pay the balance on completion.
Large Money Order Arrives: Money orders do arrive. And here’s the rub: they’re usually for more than agreed upon.
Asks You To Refund: The way the scammers make money is by getting you to Western Union money to them. So, the “closer” is almost always a request to send the overage amount to a) them or b) some specified intermediary in the U.S.
Generally speaking, all web developers and designers should be wary of inquiries that ask them to send money to someone else – especially if you’re being paid by credit card or money order.
Speak With A Design and Developer Attorney
Kelly Warner is an Internet law firm that represents Web developers and graphic designers. To learn more about our firm, click here. To get in touch, please use one of the methods presented on our contact page. We look forward to speaking with you soon.
Native Advertising Laws: A Very Brief Summary
Originally Posted: Tuesday, July 7th, 2015
Media chatter suggests that the Federal Trade Commission has turned its gaze towards “native ads” – a.k.a., sponsored content. At an industry conference, FTC director Mary Engle outlined the agency’s core apprehension regarding native advertising. She explained:
“For us [the FTC], the concern is whether consumers recognize what they’re seeing is advertising or not.”
Is It Enough To Use A “Sponsored” Label?
A lot of websites demarcate promotional sections with a “Sponsored Stories” headline. Does that satisfy FTC guidelines? Not anymore.
Some marketers label native advertising in fine print. Think: sponsored (don’t worry, you’re not the only one who can’t read it). At the event, FTC’s Engle reminded attendees that the commission had won cases in which the word “advertorial” was so small the average person didn’t notice it.
If It Misleads, Your Business May Bleed
A journalism axiom instructs: “If it bleeds, it leads!” In other words, gory stories get front-page coverage. Call it “rubbernecking syndrome.” As a variation on the theme, native advertisers should remember: “If it misleads, a business may bleed!”
And remember: Advertisers, designers, and even marketers can all be held responsible in a “native advertising” sting.
Native Advertising and Marketing Audits: A Business’ Best Friend
U.S. brands courting overseas customers must adhere to both domestic and foreign advertising laws.
Are you positive you understand – and follow – every state, federal, and international marking law, regulation, and guideline? Ask yourself:
Do you know how EU and UK privacy laws affect digital marketing campaigns?
Ripoff Report Updates Its Longstanding Removal Policy
Originally Posted: Thursday, July 2nd, 2015
For five or so years, the business community has hotly debated Ripoff Report’s (ripoffreport.com) removal policy. The consumer review website has earned a reputation among some entrepreneurs for not removing any postings – even defamatory ones.
In the past, people who wanted to challenge claims were welcome to publish rebuttals. But the site has always maintained a strict hands-off policy with regards to redacting posts.
And here’s the important thing to understand: Ripoff Report’s removal position was (and still is) supported by federal and state laws.
Did Ripoff Report Change Its Removal Policy?
Recently, Ripoff Report has made significant changes to its redaction policies. Not: the arbitration program and corporate advocacy programs still exist.
According to a Ripoff Report executive, the consumer review website is still developing a new procedure in which it would voluntarily honor certain court orders, under very specific, limited, circumstances. The executive said the policy change was prompted by “respect for the courts and the judicial process.”
This is a significant change for Ripoff Report. We hope it proves helpful to small business owners.
Ripoff Report Will Not Honor All “Removal” Court Orders
Must Mention Defamation
At the very least, for Ripoff Report to even consider honoring a court order, it must mention which claims or statements are defamatory or libelous. Even then, it’s unlikely that site administrators will remove the whole report.
According to Ripoff Report, the site will give court orders “special prominence” on the relevant pages, and will “redact the information specifically identified as false” under extreme enough circumstances.
We can confirm that Ripoff Report will, indeed, in very limited circumstances, redact content. In fact, we recently obtained a favorable result for a client who was dealing with a defamatory post. But since every case is different, you shouldn’t assume the same results.
We recently obtained a favorable result for a client who was dealing with a defamatory post.
Ripoff Report’s new removal policy only applies in cases where both sides have presented arguments in court – and the court ruled against the author of the posting. Default judgments probably won’t not be accepted. Still, the change is a step forward for people and businesses that have been defamed on ripoffreport.com.
Speak To A Ripoff Report Removal Lawyer
Is a false posting on Ripoff Report causing your business hardship? The attorneys at Kelly Warner have worked with hundreds of businesses to mitigate the crushing effects of defamatory online consumer reviews. If you’ve been “hit,” contact our ripoffreport.com removal attorneys; they’ll be able to review the specifics of your situation and, depending on the circumstances, may be able to guide you towards an effective outcome.
Arrange a consultation with a Ripoff Report Removal Lawyer.
10 Things Marketers Must Know About Fake Reviews
Originally Posted: Monday, June 29th, 2015
The bottom line on fake reviews: They’re more trouble than they’re worth.
To help you stay on the right side of regulations, pay heed to these ten tips – from an Internet lawyer – about online review legalities.
#1: Are Fake Reviews Allowed?
Fake reviews violate a slew of advertising and marketing laws. In the words of the FTC: “[Endorsements] must reflect the honest opinions, findings, beliefs or experiences of the reviewer.” In essence, a fake review would not reflect the “honest opinion, findings, beliefs or experiences of the reviewer” since the premise of a fake review is that the reviewer never used the product or service.
If fake reviews are used in a commercial capacity, the FTC could charge you with violating Section 5 of the FTC Act. Also, competitors may come after you for unfair competitive activities and/or violations of the Lanham Act. Both Section 5 of the FTC Act and the Lanham Act have provisions for punishing people who engage in false and misleading advertising.
In the words of the FTC: “If an endorser is acting on behalf of an advertiser, what she or he is saying is usually going to be commercial speech – and commercial speech violates the FTC Act if it’s deceptive. The FTC conducts investigations and brings cases involving endorsements under Section 5 of the FTC Act, which generally prohibits deceptive advertising.”
#2: Try to Get an Injunction
Fake and phony reviews can ruin a company’s reputation. The longer they remain online, the more damage they can do. If you’re the target of a malicious fake review attack, hire an attorney who can determine the best course of action.
Advertising claims must be truthful. Yes, you’re allowed to engage in a bit of “puffery”, but straight up lying deceives consumers; hence, it’s a violation of marketing and advertising rules. If you get caught passing lies via marketing materials, the FTC may fine your company.
#5: Don’t Mislead People
Not only can’t you lie in promotional material, but you can’t intentionally mislead people. The FTC’s prime directive is to protect consumers against fraud and deceptive marketing. Blatant misdirection falls under that umbrella.
#6: Disclose Generously
It’s not OK to bury a disclosure behind a single footer link, which takes you to a 20,000-word legalese wall of 8px text. Disclosures must be conspicuous. Plus, they should be written in a way that the average person can understand.
Our online review compliance attorneys can help you craft disclosure language. Businesses are no longer protected by purposefully confusing – but legal – user agreements and disclosures. In the FTC’s words: “…but each new endorsement made without a disclosure could be deceptive because readers might not see the original blog post where you said you got the product free from the manufacturer.” And “a disclosure on a profile page isn’t sufficient because many people in your audience probably won’t see it. Also, depending upon what it says, the badge may not adequately inform consumers of your connection to the trade association. If it’s simply a logo or hashtag for the event, it won’t tell consumers of your relationship to the association.”
#7: Drop in Search Engine Rankings could be a Legitimate Harm
To win a defamation lawsuit against a fake-review-posting competitor, plaintiffs must demonstrate harm. In some cases, a drop in search engine rank qualifies as sufficient harm for the purposes of a lawsuit, because it correlates to client loss. This area of the law is still untested.
#8: Leave Celebrities and Newscasters Alone
It’s not OK to deceptively use celebrities’ or news anchors’ pictures without permission. In most cases, it’s OK to use royalty free pics of famous people for editorial purposes, but you cannot use them to make it look like they endorse a product, business, or brand.
#9: Family and Employees Must Out Themselves
The Federal Trade Commission insists that all material connections are disclosed in promotional and marketing materials – and the agency considers familial and professional relationships to be material. In the words of the FTC: “Advertisers are subject to liability for false or unsubstantiated statements made through endorsements, or for failing to disclose material connections between themselves and their endorsers.”
#10: Beware the Giant Fines
If you do tempt fate and use fake reviews, prepare to pay a large, large fine if the FTC comes knocking. Be warned: the FTC does not mess around. They’ve even been known to re-possess houses, mink coats, watches, cars, and other assets from family members!