Posts Tagged ‘legal’

The U.S. Federal Trade Commission continues to make internet commerce a top priority. The FTC recent issued new regulations that govern the use of “endorsements” to promote products. Those regulations can be found at 16 C.F.R. § 255 or here. Note, the new regulations are effective December 1, 2009.

The new regulations cover all sorts of third party testimonials and endorsements—by consumers, experts and celebrities. If your promotions use customer or consumer endorsements, the FTC requires that the results described must be typical or, if not, you should “clearly and conspicuously” disclose that the results presented are not typical. Also, such customers should be “bona fide” buyers of your product, and not, for example, a fictitious person or your cousin who is doing you a favor. For expert endorsements, the person involved should have special knowledge that qualifies him or her to make the endorsement, e.g., if you use a doctor to sell a diet plan, that doctor shouldn’t be an eye doctor, but have special knowledge in the area of nutrition.

Also, the FTC requires all endorsements to disclose any “material connection” between the vendor and the advertiser. For example, if an affiliate runs a website offering an “independent review” of two products and gives a favorable review of one, they should disclose the fact that they are receiving a commission from the sale of that product. These rules also apply to third parties, such as bloggers, who receive a free product and are asked to do a review. Under the new FTC rules, not only should the blogger disclose he got the product for free but the vendor who gave him the product should make some effort to make sure that the blogger makes that disclosure.

Please review these new rules yourself and if you have questions, please ask your own legal counsel. ClickBank cannot and does not give legal advice to our vendors or affiliates, and our approval of your product does not constitute an approval of any specific marketing, promotion or endorsement used to sell the product.

Posted by: Simon Slade, Guest Blogger

Disclaimer: Please don’t take any of this as legal advice. I’m not a lawyer. I would always recommend seeking professional legal advice if you are unsure on any areas.

Nike, iPhone, Google, ClickBank – these words catch your attention because they are strong brands and are instantly recognizable. So why not use that to your advantage and include these names in your advertising? Could you get into trouble for using a brand name?

With a pretty decent AdWords spend each year, our own advertising here at Affilorama needs to be highly effective yet fully compliant. Let’s talk about some ways you can safely use trademarked brands in your advertising, and some dangerous pitfalls you want to avoid.

Vendors – Protecting your brand

If you’re a vendor, you know how important it is to develop a strong brand and look after your reputation. As your success grows so will the number of competitors, affiliates, and resellers interested in using your trademarked name(s). But the internet is a massive playground to patrol – how can you effectively monitor your brand?

• Register your brand – You can choose to register your brand for added security in key markets. For example, in the US you can register with the US Patent and Trademark Office. This can be a powerful asset to have when you need to prevent someone using your trademark without your permission.
• Google Alerts – A great way to monitor online activity that involves your brand name is to set up a free Google Alert.
• Traffic Travis PPC Analysis – Monitor advertisers who are using specific keywords, such as your trademarked names, using the PPC Analysis tool.
• Social Media search – Some social media sites are “walled gardens” and won’t appear in a standard Google search. This means you will need to perform manual searches on sites like Facebook.

What can you do if you come across what you feel is misuse of your brand?

• Is it misuse? – First, make sure your brand is actually being misused. Google has recently relaxed the use of trademarked names by advertisers, particularly in the US. It’s also possible that the use of your brand by someone else is actually to your advantage, in the form of free publicity.
• Contact the offender - If you are still unhappy with the use of your trademarked name, then the best course of action is to attempt to contact the offender directly and resolve the matter. Beware of “burning bridges,” as the offender may not have been misusing it intentionally and could be a powerful advocate for your product.
• Legal recourse – If the matter is still not resolved to your satisfaction, you can turn to a third party for assistance. Google has clear guidelines on its policies for trademark usage and ClickBank has its own trademark policy that all clients must adhere to.

Affiliates – Using trademarked names the right way

Using a trademarked name can be a very effective method of promoting a product, but done outside proper usage guidelines will only create problems. So what’s the best way to use a trademarked name?

• Work with the vendor – Cooperation and openness is the best policy to gain maximum advantage from using a trademarked name. A vendor can provide extra support and resources to boost your promotion. For example SaleHooReview is an affiliate website that promotes our popular wholesale directory service, SaleHoo. He contacted us and thus began a productive relationship that works for both parties, an arrangement that allows him to use our trademarked SaleHoo brand on his site and in his domain name.
• Avoid negative intent – Some affiliates have been known to use a trademarked name in a negative way, such as advertising a poor review of a product to grab attention, or to switch to a competing product. If you intend to use the trademarked name in a way that casts the vendor in a bad light, then expect to be challenged for its usage.
• Keep it ethical – Trademarked names are often used in a negative way to trick consumers. Counterfeiters are notorious for tricking consumers into believing they are buying the real thing by using names that closely resemble the original product name. Other unethical uses include impersonating the actual vendor and directly linking to their site with an affiliate link. Some of these practices are thoroughly policed and banned by Google.
• Check advertising guidelines – Google updated their policies in June 2009, relaxing its rules on the use of trademarked names in selected countries including the US and the UK. Trademarks can be used in your targeted keywords and AdWords ad copy if you sell or review a product. But just because Google allows it doesn’t mean the vendor will – it pays to check if they place any restrictions on using their trademarked names.

Vendors and Affiliates working together with Vendor Spotlight

There’s a certain synergy that comes from vendors and affiliates working together. Rather than a vendor spending their time hunting down the “bad guys,” they can focus on working with the majority of affiliates who are genuinely interested in promoting their products in a legitimate manner.

An excellent way to build bridges with affiliates is for vendors to create their own Vendor Spotlight. The Vendor Spotlight is a good way for vendors to communicate with affiliates, and potential affiliates, about what support and resources they offer affiliates, current promotions, sales trends, and other news and tips for selling more product. We use the SaleHoo Vendor Spotlight for keeping our affiliates informed of new material we add to the affiliates area on SaleHoo or special promotions that we run.

If you need to ask the vendor questions about use of their trademarked names, and seem unable to find a way to contact them, talk to ClickBank. They may be able to mediate on your behalf.

Using trademarked names when promoting ClickBank products can really boost your sales, increasing your profile and your commissions. But when the rules of fair usage are ignored, the resulting conflict is not good for anyone.

Do you use trademarked names or brands in your promotions? What’s worked best for you? Do you feel the policies on brand name usage are too relaxed?

About the author

Simon Slade is the CEO of Affilorama, an affiliate marketing training portal that offers free video training, education and software tools to both beginning and advanced affiliate marketers.

Please note: Any opinions expressed here represent those of the author, and are not necessarily recommended or endorsed by ClickBank.

Earlier this week, we updated our Client Contract with a number of changes, so in this post we’ll summarize what these changes were.

Almost all of the changes we made to the contract were merely changes to legal language, and didn’t change the existing meaning of the policies we had in place. For example, we added several of our existing policies to the Client Contract, as opposed to having them in separate places on our website. We also added a new policy which did not exist before, which is the Return and Cancellation Policy. The items in this policy, such as ClickBank’s 60-day return policy, were stated elsewhere, but were not previously included in the Client Contract.

We strengthened the legal language of certain parts of the contract, including Intellectual Property (IP) rights, the DMCA Policy, and confidentiality rights to protect ClickBank, our clients, and IP owners. We also updated wording about spamming and sending unsolicited messages to be consistent with current laws.

In addition to the legal language changes, we made a few policy changes you should be aware of.

1. ClickBank now no longer allows the sale of any product that, in ClickBank’s sole judgment, encourages the unlawful transfer of copyrighted media, such as music, movies, video, and games.
2. We now allow the sale and promotion of website templates, which were previously prohibited.
3. In the past, we required a $50 fee to transfer an account to a new owner. This fee is no longer required, so you can transfer an account to a new owner at no charge. The new owner will need to accept the Client Contract in order to use the account.

Due to changes in legal language, we have received questions about offering non-cash bonuses, such as ebooks, as incentives for customers to purchase a product. ClickBank’s policy regarding affiliates giving “bonuses” to customers for purchasing a product has not changed with the new contract. Affiliates and vendors cannot offer cash or cash equivalents (e.g., “Buy now and receive a $15 rebate to your Paypal account”), but it is acceptable to offer bonuses such as ebooks or audio programs as an incentive to buy.

Additionally, some clients believed that they could no longer transfer their account to another person. However, this practice is still allowed, and in fact has been made easier, since it no longer requires a $50 transfer fee, as it did previously.

If you have any questions about specific changes to the Client Contract, please leave a comment below and we’ll answer as quickly as possible.

Please be aware that ClickBank introduced a new Client Contract yesterday, updating some of our policies and terms. By creating a new account or logging in to your existing account, you agree to the new contract, so please take a few minutes to read over it and familiarize yourself with it.

ClickBank Client Contract