Trademark Infringement is a sticky subject online. Our first blog talked about Twitter and trademark infringement and today I want to address trademark infringement in relation to affiliate marketing

Affiliate Marketing is a process that rewards a blog or website for every customer that is brought to the company (the affiliate) that blog or website is promoting. The goal of the affiliate marketer is to bring visitors to the affiliate’s website in efforts to sell the affiliate’s products or services. Affiliate marketers will try numerous things in efforts to market these products or services in efforts to make money. In the past there have been lawsuits brought against marketers like this due to improper claims they were making about a product or service, who endorsed it, and if it worked. 

In August, a complaint like this was filed against not only the affiliate marketers but the affiliate as well. The claim is that the affiliate should be monitoring any and every marketing vehicle and message that is used in relation to its product.

A celebrity endorsement on a product is almost always a sure fire way to make a sale. Most savvy marketers know this and affiliate marketers know how to capitalize on this. One of the most powerful names for a product endorsement is Oprah Winfrey. For the past year or so, affiliate marketers have been misrepresenting her name along with Dr. Mehment Oz to market acai berry products. 

These marketers were claiming that Oprah and Dr. Oz endorsed these products for health and weight loss. In August, Ms. Winfrey and Dr. Oz filed a trademark infringement complaint against 40 marketers for the improper use of their names. This complaint is holding the affiliate companies to just as much responsibility as the affiliate marketers. It states that it would be virtually impossible for these companies to not realize that these affiliate marketers were improperly using these celebrities’ names to try to drive traffic and sales for the affiliate products.

Dr. Oz stated "The companies that are using my name to hawk these products are duping the public. I do not endorse any of these products. By falsely presenting products as ‘scientifically proven’ and endorsed by well-known figures, these companies do a gross disservice to the public health and could even pose a danger to those who believe their false and unproven claims. I am taking this step in the interest of public safety. I feel compelled to stand up against these companies and their deceitful practices." 

Companies use affiliate programs for the same reason that affiliate marketers get into them; to make money. That being said, should the companies that offer affiliate programs be held accountable for the content the affiliate marketers create and use?

—Ted Risdall, Risdall Marketing

  • My understanding of the current state of the law is that, generally speaking, an advertiser will be held accountable for its affiliate’s activities only if the advertiser has some control over the affiliate. So if we’re talking about a direct advertiser/affiliate relationship, the advertiser may be on the hook for the affiliate’s misrepresentations. But if the affiliate signs up via a third party (e.g, ClickBank), the advertiser is less likely to be on the hook given that it may not even know who the affiliate is, let alone control its activities.