More Rules and Regulations for Content Marketers

So, content marketers, let’s talk about the regulatory environment more broadly, because one thing is for certain: the web, as wild and woolly as online discourse may be, is no longer the Wild West. Online marketing is now being held to a much higher standard.

Privacy protection, accessibility, and copyright —  oh, my!

Last time around, we talked about data privacy regulations as they apply to non-transactional sites. As confusing a landscape as those regulations currently present, they’re not the only regulations with which you need to be aware and compliant.

So, let’s talk about the regulatory environment more broadly, because one thing is for certain: the web, as wild and woolly as online discourse may be, is no longer the Wild West. Online marketing is now being held to a much higher standard than it has been, so you’ll want to be sure you have a plan in place to build your site by the book and to remain compliant. Otherwise, you risk spending more time talking to lawyers than to prospects.

Accessibility

If you built your website without accessibility in mind, chances are you’re not going to be happy when your website developers tell you what it’s going to cost to make it compliant. In many cases, it can make more sense to start from scratch, given the investment involved.

On the plus side, the cost to design and build a new website with compliance in mind is only incrementally greater than building that same site without WCAG Level AA compliance as your goal.

There is some extra work to be done, but for the most part, compliance requires a change in mindset for designers and some slightly different coding tactics for the dev team. Once that’s in place, it’s really only a matter of making sure new content additions are made in a compliant manner. (Image alt tags must be included, for example.)

You’ll want to include an accessibility statement on your site that includes a way for visitors who are having trouble consuming your content to contact you and seek remediation.

Privacy and Data Protection

As we’ve discussed, you need a privacy policy and you need to abide by it. If you haven’t told people that you’re planning on selling their email addresses to the highest bidder, you probably can’t. (Regulations differ by jurisdiction and industry; check with a lawyer.)

Once you have a collection of data, you need to take steps to keep that data safe, both in storage and in any transmittal or other use. Again, your industry may have specific compliance standards that you have to meet, and you may need to document the protections you’ve put in place.

Copyright

If you don’t own it, don’t publish it. This should be obvious, but often marketers make mistakes that can be costly.

Images are the most common area where errors occur. Doing a web search and then publishing any old image you find is a recipe for disaster. Going through a respected stock image library and paying for the images you use is the safest approach.

If you’d prefer not to go that route, you can use the Google Advanced Image Search tool. It is an excellent way to search for images to use in your digital marketing if you filter to include only those that are “free to use, share, or modify, even commercially.”

Don’t even think about trying to use an image from a stock image library without licensing it. They can and will find you. They can and will demand payment, usually well beyond what the initial license would have cost. (Also worth noting is that technically, for most stock image libraries, any image you use should be licensed under your firm’s name rather than by your design agency. That approach is also just smart business, because you may not always be working with that design team.)

When copy is purloined, it’s even easier to track down. Even if you get away with it, the search engines may very well penalize you for publishing duplicate content. There are other ways to get on the search engines’ bad sides, so be careful if you’re republishing content from other sources, even if it’s content that you have the right to republish.

Finally, think twice before stealing code. It’s an open source world, but that doesn’t mean you’re free to take and use anything you find in your travels. At the very least, attribution may be required. Most code libraries, snippets, etc., may require license fees — regardless of how they’re used. Some require payment only if you want updates or support. This can be harder for marketers to police, so be sure to have a regularly scheduled review with your dev team.

Spend Time on This

These regulations — and whatever may be coming down the pike in the future — make investing in digital expertise ever more important. Your team needs the time and mandate to stay on top of what regulations apply to your business and best practices for remaining compliant.

The Keys to Protecting Your Brand Online

When your brand is online, it is in jeopardy. Competitors may use your brand terms in keyword searches, pirate your slogans or unfairly label their goods with your brand. There are roughly a million ways for the unscrupulous to abuse your brand, and only one way for you to protect it — diligence.

Jolly Roger Flag: Protect Your Brand
Credit: Skull and Crossbones Flag on Flickr by Jennifer Gensch

When your brand is online, it is in jeopardy. Competitors may use your brand terms in keyword searches, pirate your slogans or unfairly label their goods with your brand. There are roughly a million ways for the unscrupulous to abuse your brand, and only one way for you to protect it — diligence. Protecting your brand starts with consistency of use and message, and requires a meticulous process to protect your brand value and your legal rights.

Best practices require that you establish your rights before you even go online if you can. I consulted renowned Trademark and IP attorney Maureen Kassner, partner at K&G Law, who offered this advice:

“The most critical steps you can take towards protection of brands and trademarks take place long before they are used. Trademark rights are national in scope. Once you have narrowed a list of potential brand names for your new product or services, the list should be searched for availability as a trademark in any countries in which it is proposed for use on significant scale. US trademark attorneys oversee this process in the States, and many have a network of colleagues who can assist with international trademark clearance. Ideally, the list should list potential names in order of priority so that once a mark appears to be available for use there is no need to undertake additional searches.

The United States, unlike most countries, recognizes trademark rights acquired through use as well as those conferred by registration. For this reason, trademark clearance searches should include not only the federal and state trademark registry for applications and registrations of prior marks but should also include common law (i.e., unregistered) uses, many of which can be found on the internet.    Demonstrated use of identical or similar names for related goods or services is a red flag that it will be difficult to create a strong brand identity and garner recognition in the marketplace.”

Once you have settled on an available trademark, it is up to the brand stewards to protect it, bringing in your marketing, corporate and legal resources for that purpose. The legal team will need to secure the rights to the brand. According to Kassner, this would entail:

“… not only filing an application for registration in countries relevant to the business, but also securing relevant domain names and social media handles. In addition, it is important to use the appropriate designation whenever the mark is used to indicate to the public that the term is proprietary. (In the US, “TM” may be used for any mark; the ® symbol can only be used after registration.)

Legal language identifying the rights claimed in a brand should be included in small print either at the end of an ad or at the footer on your proprietary website. Distinctive logos, slogans, favicons, and jingles which are used consistently in connection with the goods or services are great ways of building brand recognition among your target audience and can be registered separately as both trademarks and (with the exception of slogans) copyrights.”

Infusing your owned properties, like your website, with a consistent and appropriate brand presence should start with a brand guidelines document that is shared with all the internal and external partners that represent you online. Have your trademark attorney review that document. Once reviewed and approved, this cements a common understanding about the desired brand presentation.

As the brand evolves, of course, the document will need regular updating. Use those brand guidelines across social media platforms, in emails, and any public communication that represents your brand to ensure the consistency that ultimately helps to support your claims should you need to defend them.

The sad truth is that even with all the appropriate legal precautions and process, infringements routinely occur. Regular monitoring is required to find and minimize the impact of these infringements across channels and platforms.

Search activity is a common point of trademark infringement. Per Google’s rules (simplified) others may bid on your brand or trademarked terms but may not use the trademarked language in their ads. Get familiar with the search engine’s official policies and report bad actors in a timely manner both directly to the search engine and with a letter to the offender.

Schedule a weekly competitor check to see the bidding strategies of those most likely to benefit from your brand. Do regular branded searches both online and in social channels that extend to include your other trademarked items to see who is misusing your property. Include typos and the URL of your brand (www.BRAND.com) in your searches as consumers often type that into a search bar.

Your agency partner can and should provide this service, but there are also trademark monitoring services that can offer a broader package of monitoring and resolution. Be advised that the path to resolution with offenders is often lengthy, frustrating and filled with bureaucracy and forms.

Keep good records of all incidents and correspondence and don’t rely on third parties to reach the conclusion you need — this is a battle won by the diligent.

Please Stop Stealing

With the tumultuous 2016 presidential election ahead of us, you can’t crawl out of bed without something political crawling in — or maybe that’s just my problem with reading the news in bed on my phone most mornings. But that’s how I came across this Ad Age story about Gary Johnson’s presidential campaign stealing agency Spark’s brand concept.

Business cat copyright memeWith the tumultuous 2016 presidential election ahead of us, you can’t crawl out of bed without something political crawling in — or maybe that’s just my problem with reading the news in bed on my phone most mornings. But that’s how I came across this Ad Age story about Gary Johnson’s presidential campaign stealing agency Spark’s brand concept.

Sigh.

Today I don’t want to talk about politics … instead I want to look at the major issue of people not understanding that you can’t just rip things off. This isn’t Instagram basically copying the Stories idea from Snapchat (you can’t copyright ideas … though it’s still not highly advisable unless if you can innovate upon it).

I already yelled about this when Quirk Ford, a franchise dealership of Ford, stole art from indie developer Campo Santos’ game Firewatch. And now here we are about six weeks later.

Now, I recommend reading through the Ad Age story “Agency Says Libertarian Candidate Gary Johnson Stole Its Brand Concept” because Kate Kaye nails it with her reporting. But the quick version is this: Tampa, Fla.-based agency Spark came up with a brand concept for Gary Johnson’s campaign … essentially for kicks. And then the campaign started using it, without permission.

From Ad Age:

In June, the agency published its quarterly magazine, Stick, which featured a variety of articles relating to the “underdog” theme. The agency — which does not work with political clients — decided to take a stab at creating branding specs for an underdog political campaign and chose to use the third party hopeful, former New Mexico governor and triathlete, as its guinea pig.

“We looked at it from a pure brand standpoint,” said Elliott Bedinghaus, VP-creative at Spark, adding, “Our intent for this was never to work with Gary Johnson.”

How hard would it have been for the Johnson campaign to reach out to Spark to discuss their work, and perhaps ask for permission to use the concept? The campaign, according to Ad Age had not returned multiple requests for comment.

In response to this whole snafu, Spark made this video responding to the issue. Watch it … all 41 seconds of it … to see how the pros handle things.

Spark … you are CLASSY. “If you’re going to swipe, swipe right.” Even classier is the site, hellogaryjohnson.com, and here’s a little taste of it:

Hellogaryjohnson.com site Hellogaryjohnson.com site“Here’s a little guidance for how we intended the concept to be executed,” the site reads or, in other words, “Hey, you’re doing it wrong.” Spark even provides downloadable working files.

And then includes this short note:

All in all, we’re excited that you’re giving our work greater visibility by making it a part of your campaign. And, political views aside, that’s a pretty big win in our book. Let’s just do this thing the right way.

If you’re gonna steal, steal smart … and as Spark said, if you’re gonna swipe, swipe right. Now Spark acknowledges the visibility it will receive, but still hits home the message: There’s a right way to do this.

You rarely win when you steal things, and with Gary Johnson’s political campaign and Quirk Ford … you end up looking dishonest, incompetent and … well, lazy. No one wants that, and it’s not that hard to avoid.

Marketers, strive to be above board. Agencies and consultants, do the work to keep your clients informed. And maybe we can all move past this.

Oh yeah, and here’s my video on Quirk Ford’s “art heist” if you want to see me get all up in arms and legitimately yell:

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Quick update: According to Spark, the Gary Johnson campaign DID reach out and apologize. You can see this mention here on the Youtube page comments for the video (though they mix up Ad Age and Ad Week …)