Social Networking Sites

Matt Kucharski, Executive Vice President, Padilla Speer Beardsley

I’m not really the kind of guy to recommend brands on social media, which is a bit ironic because that’s the ultimate goal of every marketer – to turn your customers into advocates.

But that all changed the day I discovered Dollar Shave Club, an e-commerce

John Reinan, Senior Director at Fast Horse, a Minneapolis marketing agency

Let’s face it: Social media are taking over the world. And the biggest social medium of them all, Facebook, is well on the way to grabbing a premier piece of trademark turf.

Facebook has applied for a trademark on the word “face”

—Andrew Miller, Intern, Fast Horse Inc.

In terms of name recognition, PING is to golf what Louisville Slugger is to baseball, so you’re right if you found it odd Apple would name its new music-based social network, of all things, Ping.

Apple is no stranger to trademark litigation after wrangling with Cisco (“iPhone”) and

Social media has become the must-have tool for every marketer and this tool is gaining popularity with every industry. For example, the insurance industry is typically known for more low-key advertising and marketing channels. However, companies like HCC Medical Services, LLC and Blue Cross Blue Shield have jumped on the social media band wagon. HCC Medical Services has

We all would agree that “As Seen on TV” is one of the great brands of all time. The brilliant marketeers behind it recognized the extraordinary power of television – people believe as true what they see on TV.

Why that is I’m sure has been the subject of enumerable studies; after all it defines who we are as consumers and sets the stage for a marketplace where the phrase “targeted consumer” takes on real meaning. Between infomercials laden with celebrity endorsement, a tried and (sometimes) true tactic for moving people closer to their wallets coupled with compelling “just like my neighbor” testimonials, and home shopping networks with live celebrities and testimonials whose “it has to be true” quality rings true for millions of people, consumers are drawn to purchase like moths to a light.

The online world has taken this phenomenon and cranked it up a notch. The more modern version of “As Seen on TV”, its sister brand “As Seen on the Internet” – is an even more powerful lure. It is extraordinary how so many people believe that the “default” for the Internet is Truth, as if there were a mysterious group of censors and law enforcement officials who were reading everything found on the Internet to ensure that anything false or fraudulent automatically was removed. If only that were so.

Social networking has taken this propensity to believe anything electronically delivered to an even higher level. People tend to believe as true what others in their electronic neighborhoods say. This tends to be the case whatever the form of visual channel, from “expert” blogs in About.com, to the thousands of pseudo-news blogs, closed social environments like Facebook or MySpace, or in some form of IM (Include Twitter here). The stories of fraudulent promotion on Twitter already are legion. Add to this the hundreds, perhaps thousands of for-hire bloggers who will supply testimonials for a fee, and the potential for online, “As Seen on the Internet” consumer deception increases dramatically.

It was inevitable that at some point the FTC would have to step in. The Federal Trade Commission historically has taken consumer fraud seriously, but the massive amounts of online fraud, ranging from paid for false testimonials to the most severe forms of identity theft , have created a new vigor in that agency.

On December 1, 2009, new Federal Trade Commission’s Guides Concerning the Use of Endorsements and Testimonials in Advertising (the “Guides”), with heightened requirements for bloggers to disclose affiliations with sponsors of those endorsements, go into effect.  See FTC Press Release dated October 5, 2009, here.  The text of the Guides, 16 CFR Part 235, is available, here.  Although these Guides are advisory in nature and do not expand the scope of liability under Section 5, they are intended to provide guidance as to how the FTC would apply governing law to various fact patterns.


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For the last month or so I’ve been following the antics of Twitter as they attempt to assert rights to the word "tweet". Based on their completely inconsistent—one might even say schizophrenic approach, I feel justified in using the word "antics".

Until very recently, Twitter didn’t seem to care much about what third-party apps were named. In fact, in a blog post from July 2009, founder Biz Stone said, "Regarding the use of the word Twitter in projects, we are a bit more wary although there are some exceptions here as well. After all, Twitter is the name of our service and our company so the potential for confusion is much higher. When folks ask us about naming their application with "Twitter" we generally respond by suggesting more original branding for their project. This avoids potential confusion down the line."

Note the phrasing: “suggesting more original branding”. What happens if the developers don’t take the suggestion? By allowing so many third party apps to use the name already, they’ve tacitly given permission for others to infringe on their trademark. If they then try to defend their trademark against the new filers, what can they say?


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twitterrificDownload-Spam Logo-

What does Twitter have in common with Kool-Aid, Mickey Mouse, and Spam? Maybe nothing, at least yet, but I predict that it will soon, unless Twitter retains some talented PR help in a hurry. Why?

The Kool-Aid, Mickey Mouse, and Spam brands all have spawned secondary or alternate and negative non-trademark meanings that have become part of the English language, meanings in each case that lack positive brand associations, to say the least. If Twitter is not careful it will find itself “following” the likes of Kool-Aid, Mickey Mouse, and Spam, and be in the similar undesirable position of tolerating language changes that distract from their brands and favorable brand messages, to be left watching others make generic use of their brand names to communicate a variety of ideas and meanings that are neither flattering nor brand building.


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