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.