Ryan Kaiser, Partner

October 6, 2011

2 Min Read
Another Threat to Mainstream Appeal? "Consumer Reviews"

Imagine a group of doctors has decided to review the leading products in your category and create a website providing an unbiased review. Sounds great, right? “Now consumers will see how we stack up to the competition,” you think.   You type your product name into Google, and see a paid advertisement with the headline “[Your Product] – WARNING.” You click the link and find that the good doctors have nothing good to say at all. Worse yet, your competitor’s product is rated “#1”, and covered with “buy now” links.

Despite the FTC’s Revised Guides Concerning the Use of Endorsements and Testimonials, there’s a vibrant market for paid consumer reviews. Help-for-hire sites like Elance.com and Guru.com show an abundance of companies looking for paid reviews, and freelancers looking to write them. While the FTC Guides proscribe paid reviews without adequate disclosure of “material connection,” there is a nefarious trend emerging in “consumer reviews” which has resulted in several recent law suits.

“Review sites” often feature a group of unaffiliated reviewers (often physicians) who provide a comprehensive and “unbiased” review of a particular product category. They round up the competing products and write “reviews,” which all have a decidedly negative slant…for all but one. These sites typically employ a ranking system, where the “#1” product receives rave reviews and links where consumers can purchase the product. There are twists, but the overall plot remains consistent. 

What good is a “review site” if nobody sees it? These sites get limited “SEO” benefit by including all those competitor trademarks in the text (and often META tags), but some go even further. Site owners often purchase Google AdWords using competitor trademarks along with inflammatory words like “SCAM” and “WARNING.” Throw in an astroturfing campaign of blog posts pointing back to the “review site,” and you start gaining “SEO” traction.      

Seems like potential liability abounds, but what lessons can we learn from all this? For starters, consumers should be wary, and brand owners should monitor their online reputation.  What about the “#1” product manufacturer? Overzealous affiliate marketers can set up these sites unbeknownst to the manufacturer.  Those who use affiliate marketers must be vigilant in selecting affiliates, crafting service contracts that address their potential liabilities, and monitoring affiliates’ online activities. Remember, all signs point to the “#1” product manufacturer on these sites. When the FTC or competitors’ attorneys come calling (or suing), it’s typically the manufacturer, not the affiliate marketer, initially in their sites.

This isn’t meant to be all doom and gloom, but rather to illustrate how a few bad apples can ruin the bunch. Customer-review-based marketing can be wonderfully effective when done properly. Responsible and transparent use of endorsements and consumer reviews is imperative to maintain the integrity of the industry at large.

If you’ve ever had a product involved on a suspicious “review site," or know someone who has, please comment below. 

About the Author(s)

Ryan Kaiser

Partner, Amin Talati Wasserman

Ryan Kaiser specializes in the protection and enforcement of trademark rights for businesses of all sizes. His diverse trademark practice includes counseling clients on the selection of new marks, clearance searching, U.S. and international registration, licensing, portfolio strategy, anti-counterfeiting measures, enforcement, oppositions, and litigation. Ryan also assists clients with the protection, enforcement, and licensing of copyrights.

For nearly two decades, Ryan has represented clients in a variety of industries, including food and beverage, dietary supplements, cosmetics, pet food and treats, pharmaceuticals, medical devices, consumer products, musical instruments, computer software and hardware, online media, automotive products, publishing, education, and sporting goods. Startups, entrepreneurs, and early-stage food and beverage companies frequently engage Ryan to provide strategic counseling in intellectual property matters. Ryan also provides buy- and sell-side due diligence support related to the merger or acquisition of a company or its intellectual property.

When issues of trademark infringement arise, Ryan is the attorney clients want on their team. While he has significant experience resolving trademark disputes through negotiation, he also regularly litigates before federal district and appellate courts as well as the Trademark Trial and Appeal Board. Clients also turn to him when faced with domain name disputes, including Uniform Dispute Resolution Policy (UDRP) proceedings and lawsuits before courts in the U.S. and abroad.

Ryan is a sought after speaker on trademark and unfair competition issues and has served as Vice Chair of the Chicago Bar Association’s Food Law Committee.

When he is not busy protecting his clients” brands, Ryan enjoys traveling with his wife and children, learning (albeit, slowly) to play the guitar, and dabbling in ultrarunning.

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