Read the Papers, Watch the News, but Mind the Message Boards

Ryan Kaiser, Partner

September 29, 2011

2 Min Read
Read the Papers, Watch the News, but Mind the Message Boards

Advertising is everywhere these days.  On an airport escalator last week, I saw an illustrated gecko urging me to save on car insurance.  There’s advertising on the moving escalator handrails?!  With the increasing amount of media to which we are subjected, traditional advertising is becoming diluted.   Dietary supplement manufacturers and marketers must find a way to cut through all the noise if they want to compete for consumer dollars.  What to do?

 Studies have shown that reviews and endorsements may have a significant impact on consumer purchasing decisions.  Simply put, we buy stuff our friends like and recommend.  That may explain the trend of “CrowdSourcing” product marketing, using online tools like social media, blogs, message boards, and video testimonials.  People are encouraged (sometimes compensated) to share their experiences, provide feedback, “like it”, etc.  More consumers are relying on the recommendations of family and friends (and sometimes people they don’t even know) when buying products.

The potential for abuse is tremendous.  How can consumers trust that all this commentary is genuine and truthful?  Surreptitious paid endorsements and overzealous affiliates can affect the credibility of the supplements industry by casting doubt on all of those rosy customer “reviews” (a subject for next week’s post).  

But what if the news isn’t good and your product or company is ripped on a message board?  Freedom of Speech:  People can say whatever they want, right?  As with many legal questions, the answer is “maybe.”  There is a distinction in defamation law between opinions and facts.  The former is protected speech, whereas the latter can be actionable.  It’s necessary to evaluate whether a defamatory statement is fact or opinion.  Opinions, even if negative, are protected speech and generally don’t give rise to defamation.  

What do you do if there is a bona fide defamatory statement about your product or company on a message board?  Can you sue the website owner?  In most cases, the answer is “no.”   Section 230 of the Communications Decency Act instructs that website operators are not liable for publishing defamatory statements posted by someone else.   Generally you must confront the authors themselves.  Fear not… even anonymous online authors can be identified.  An IP address and a subpoena is often all that is necessary to obtain the “anonymous” author’s contact information.

Social media and referral-based marketing can be wonderfully effective when used properly.  However, care must be taken to manage and monitor the process.  The laws and regulations concerning endorsements and defamation in the online world are full of interesting twists.  If you feel your company’s reputation is being tarnished online, contact an attorney. 

If you have an interesting story about how social media or online commentary has affected your business (good or bad), let’s hear it.  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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