Legal Marketing Issues for Today’s eMerchant
By Mark Ishman
It is safe to say that most, if not all, buyers of products and
services utilize the Internet during their shopping process. This includes locating the online store,
their desired products and services, and customer reviews on the online store.
In targeting customers, today’s eMerchants have invested heavily
in their individual websites and virtual billboard advertisements such as
pay-per-click and banner advertisements. Today’s eMerchants have also used
Internet-based communications such as e-mails, instant messaging and Tweets™ to
advertise their products and services, and have paid particular attention to
the way Internet users locate the items in which they are interested.
With today’s new marketing opportunities come new risks as the
changing law adapts to the evolving use of technology for commercial
transactions. This article is intended as an overview of the many legal marketing
issues the Internet raises for eMerchants.
Advertisement
in the New and Evolving Media
As an eMerchant, you are spending hundreds of thousands of dollars
in your print, media and/or online advertisements. Additionally, your investment in advertising
naturally has developed your “branded” identity. As a result, all forms of your
advertisements, website content and brands are your intellectual property, and
they can be protected by obtaining federal copyright and trademark
registrations. Not only do such Intellectual
Property registrations add value to your eMerchant’s net worth, but they also
can prevent, or quickly resolve, unfair and deceptive practices by a competitor
that utilizes your copyrighted ad content or trademarks to compete against you. If you are spending hundreds of thousands of
dollars in televisionmedia, Internet or print advertisements, Mark Ishman can
assist you in securing your intellectual property rights in order to add value
to your eMerchant’s net worth and deter your competitors from unlawfully using
it to compete against you.
Keyword
Advertisements
As an eMerchant, you are also targeting your customers by using
the same search engines those customers use to find information about their
desired products and services, and your wesite on the Internet. Internet search engines, such as Google®,
bing™ and Yahoo!®, assist vehicle buyers in locating specific websites that have information about
their desired products and services, and eMerchants by displaying a list of
sites that contain search terms or “keywords” entered by the vehicle
buyer. The order in which the listed websites appear takes on particular
importance in light of the view that only the top few sites on the first page
of the search results will be visited by customers. As a
result, eMerchants are utilizing online search marketing techniques that focus
on increasing the likelihood that their specific websites will appear near the
top of generated search results.
Used properly, online search marketing techniques can directly
increase the number of visitors to, and sales by, your dealership. However,
when these techniques are used improperly, they can cause your website to lose
sales or impose liability upon it. This occurs when an eMerchant or competing website,
utilizes another trademark, slogan or “catch phrase” as a keyword in its online
search marketing techniques. Such
unclean online search marketing techniques can result in liability for
trademark and copyright infringement, unfair and deceptive business practices,
fraudulent misrepresentation and intentional interference with contractual and
business relations.
This unlawful activity typically happens in pay-per-click
advertisements where one of your competitors pays Google® a fee each time their
ad is displayed as a search result when the potential product/service customer
was searching for your dealership. If
you believe that you are a victim of this type of activity, or similar unfair
and deceptive practice, Mark Ishman can assist you in stopping
it and address the damages that you suffered as a result of such unlawful
activity.
E-Mail
Marketing
eMerchants are also sending emails to their existing and potential
customers. Both federal and state law
prohibits dealerships from sending “unsolicited” advertisement emails that have
deceptive header information, or sending such emails to recipients who have
“opted out” of receiving such communications from an eMerchant. Such laws
also require eMerchants’ ad emails to disclose certain information to their
recipients. If your website fails to comply
with both federal and state email laws, then it may face both criminal and
civil liability. Before
sending your next email marketing campaign, contact Mark Ishman for a CAN SPAM
compliance audit.
Reputation
Management
After
spending hundreds of thousands of dollars in marketing and advertising, some
dealerships lose sales as a result of negative online reviews. These online reviews about your website are
usually posted by a past unhappy customer or disgruntled former employee, and
sometimes these reviews are posted by an anonymous author. When potential customers discover such
negative online reviews about your website, they often will look elsewhere. If this occurs to your website, Mark Ishman
can assist you in analyzing negative online comments about your website as well
as explore various options in how you can effectively address negative online
comments including (i) quietly and quickly removing negative online comments from the website;
(ii) post a proactive reply that discloses how you addressed the situation and
prevented it from reoccurring; (iii) reveal the identity of an anonymous
poster(s) of the comments; and (iv)
recover damages suffered as a result of negative online
comments. If you are interested in
receiving a free article on what to do if you need assistance with your online
reputation management, please contact Mark Ishman.
Security
of Data Collected Online
eMerchants must also establish and maintain
reasonable procedures to protect the
confidentiality, security, and integrity of personal and financial information
they collect and maintain from their customers and users. This begins with adopting and implementing a
privacy policy, as well as an internal security policy with supporting
procedures. Without such policies and
procedures, eMerchants may be violating both federal and state law, and
imposing criminal and civil liability upon them that can easily be prevented
with sound analysis and planning. To
ensure that your website is complying with both federal and state privacy and
financial protection laws, or if your website needs assistance as a result of a
security breach, please contact Mark Ishman to assist you through these legal
landmines that your website must avoid.
IF YOUR WEBSITE IS FACING ANY OF THE
ABOVE IDENTIFIED LEGAL ISSUES, OR IF YOUR WEBSITE DESIRES TO BE PROACTIVE AND
IMPLEMENT STEPS TO AVOID AND/OR MINIMIZE FUTURE RISKS, PLEASE CONTACT MARK
ISHMAN.