Expert legal team advises on marketing/advertising in pandemic

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– Photos courtesy of Barnes and Thornburg
 

By Cynthia Price

On April 14, Monica J. Stover of the Barnes and Thornburg Grand Rapids office led a team of B&T attorneys in a relaxed and engaging webinar on how companies should view their advertising and marketing programs during the COVID-19 crisis.

The main take-away is that there are likely to be higher levels of both scrutiny by regulators and sensitivity from the general public, so exercise an abundance of caution.

After advising attendees that the webinar did not constitute legal advice, Stover turned to “the fantastic lineup” of presenters and topics.

Although three of the four attorneys were in Intellectual Property, there was a variety of expertise represented within that broad field. Presenters were:

• Jim Dudukovich, an advertising, marketing, and social media lawyer who counsels the advertising industry. Dudukovich was formerly an in-house attorney and leads a broad spectrum of companies in thinking through their branding, communication and digital media strategies. He is a Certified Information Privacy Manager and works out of the Atlanta, Ga., office.

• Genevieve Charlton,
an IP?attorney who focuses on trademark, copyright, and advertising/marketing law. Working out of Chicago, Charlton also litigates in federal district courts and before the Trademark Trial and Appeal Board. She helps clients with global trademark filing strategies and advises them on non-litigation enforcement.

• Valerie Galassini, also working out of the B&T Chicago office, whose IP practice focuses on understanding the broader company goals and giving comprehensive counsel on how to protect their brands and images to reach those goals. She also helps develop strategies in the web domain and other areas.

• Monica Stover
herself, who focuses her practice on trademark, copyright, advertising, trade secret, and unfair competition issues. She advises clients on advertising claim review and substantiation, and compliance.

Unlike many other webinars, the Zoom-assisted meeting allowed for interaction between presenters in real time, so one attorney would comment on another’s slide, often amplifying it.

Their main message: while the COVID-19 pandemic may present opportunities for business self-promotion, the action or item being promoted must be factual and demonstrable. “Say what you do and mean what you say,” they advised.

For example, Galassini pointed to local West Michigan company Herman Miller, who announced on social media that they had pivoted to, among other things, making face shields and masks for frontline workers – and therefore been able to hire back 30% of their workforce. Referring to that and the marketing messaging of Intercontinental Hotels Group, Galassini commented, “These are both honoring what they say. Before making claims, companies have to know they’re able to follow through.”

Cautioning that advertising is considered commercial speech where first amendment rights apply differently, the attorneys advised putting together a cross-functional task force to vet any messaging, to include people from the legal, labor and employment, and investor relations departments in addition to marketing and communications.

Even where that is not possible, review teams should make sure there are not implied actions they cannot live up to. For example, people may have very different senses of what “contactless” delivery means, all of which must be explored before claiming one does it.

“There are a lot of regulators – consumer protection, investor protection, many more. But it’s really important to also think about stakeholders in your company who are looking through all different lenses,” said Dudukovich.

Companies should be sure advertising is reviewed for applicability and interest, and for any hint the company is tone-deaf. Clothing retailers, for example, are especially challenged in times of working from, and staying, home. This may mean changing advertising even at the last minute; one company used as an example talked about “Spring Fever,” which is hardly an appealing thought right now.

An additional strong message from the presenters is that consideration of copyrights should be ramped up. If someone posts a favorable comment on a company Facebook page, the assumption should not be that it is fair game for using in marketing. Always ask permission, the attorneys urged.

Businesses should also closely monitor paid or otherwise-compensated social media “influencers” to be sure they are not making claims that cannot be substantiated.

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