Advertising Sweepstakes and Contests in Social Media
Savvy marketers know that social media is an effective tool for promoting brands, products, and services in a creative and cost-effective way. This is especially true for online contests and sweepstakes. In this LIVE Webcast, some of the ad industry’s most experienced thought leaders will share best practices and practical guidance for promoting and operating contests and sweepstakes through social media channels. Join us in this two-hour LIVE webcast presented by The Knowledge Congress.
Deborah M. Lodge, Partner,
Patton Boggs LLP
Introduction: Overall Context and Background.
Basic Elements of a Lawful Online Advertising/Marketing Promotion
Prize, Chance, Consideration: basic elements.
Legal considerations are the same online as offline, but often broader reach.
In addition to laws, social media have specific rules: Facebook, Twitter Rules (Jason to discuss more specifically)
- Kinds of Promotions: Sweepstakes, Contests, Premiums
- What is a Game of Chance? What is a Game of Skill? Kate will discuss nuances.
User-generated content: specific kind of contest Jason will address
Sweepstakes/Games of Chance: Aim is to avoid “Consideration” –
$: clearly consideration
Effort/benefit: gets murky, especially online. Rob will elaborate
Prizes: often obvious, but Ben will review some issues
- Introduce key points, mention that they will be addressed by other speakers:
- State and Federal Laws; also international.
- Social Media: automatically nation-wide; if not world-wide
- Tips for Drafting “Winning” Rules, Covering all legal bases; where “void”, taxes, releases State Registration requirements
Kate C. Lowenhar-Fisher, Shareholder,
Brownstein Hyatt Farber Schreck, LLP
- Focus: skill vs. chance
- Social Gaming Issues
- Special state regulations of skill promotions (AZ, __) Also: USPS law – mailing is predicate, but
- Special rule requirements for skill promotions
- Special regulated industries/promotions, such as the laws that popped up after Publishers Clearing House issues; prize laws — such as travel prizes, liquor prizes; advertising regulations; COPPA issues.
Jason Howell, Of Counsel,
Topic 1: User Generated Content & Public Vote Contests
o Is there consideration (monetary or non-monetary)?
o Evaluate chance vs. skill
- Voting criteria
- Voting structure
o License vs. ownership of submitted content?
o Watch for FTC endorsement/testimonial issues
o Take extra precautions in Official Rules
o Comply with applicable third-party platform terms
Topic 2: Compliance with Third-party Contest & Sweepstakes Guidelines
o Facebook, Youtube, etc.
Behnam Dayanim, Partner,
Paul Hastings LLP
o Differences between the emerging social casino segment and other social games
o Emerging regulatory trends and issues to consider in the social casino space
o Treatment under federal and state law
- Elements of prize – status of social games that award “more play” or virtual rewards
- The “social casino” – more “social” or casino”?
- • Fantasy sports – are they contests of skill?
Robert J. deBrauwere, Partner,
Pryor Cashman LLP
- Whether disclosure of personal information and allowing tracking cookies and the like could possibly constitute consideration for sweepstakes entry in era where personal and psychographic information are prized data for which companies are willing to pay handsomely;
- What methods and tools are available for proper rules and other disclosures when sponsoring micro blogging (Twitter, Pinterest) promotions; and
- How to ensure that you are not running afoul of the various platform rules for hosting promotions via their channels.
- how to avoid the issue of “consideration” in Social Media Promotions and whether “liking,” “following,” permitting the use of tracking cookies and other Social Media marketing practices could constitute “consideration,” thus making a Sweepstakes an illegal lottery in all 50 states. Ideally, this would come after someone has very generally addressed the issue of ensuring that sweepstakes do not contain all 3 elements of prize, chance and consideration to be legal.
- whether “liking” or “following” to enter a Promotion could create a material connection between the entrant and Sponsor, thus invoking disclosure requirements under the FTC’s Guides on Endorsements and Testimonials
- I can also touch on privacy concerns with respect to the use of personally identifiable information acquired through registration and permitting the use of tracking cookies and other tools that allow Promotion Sponsors to track browsing history and thus glean psychographic information regarding the entrants.
David Leichtman, Partner
Robins, Kaplan, Miller & Ciresi LLP
- Private actions: individuals, class actions, mass actions, private state attorney general actions
- State Attorney General actions
- Federal enforcement by the FTC or DOJ
- Testimony before Congress
Who Should Attend:
- Legal Officers
- Marketing & Advertising Directors
- Brand Managers
- Marketing Executives
- Advertising Professionals
- Marketing Professionals
- Entertainment/media Professionals
Deborah Lodge is a Partner in the Patton Boggs Business Law and TechComm groups, where she focuses on e-commerce and “soft” IP legal issues. With her legal experience and practical business perspective, Ms. Lodge helps clients achieve their strategic goals while complying with legal regulations governing promotions, advertising and e-commerce. She also advises clients on trademark and IP portfolio development and commercialization.
Ms. Lodge has counseled clients for many years about the legal aspects of promotions and marketing, including sweepstakes, contests, user-generated content, and online programs, as well as traditional advertising and UDAAP issues. Among her related practice areas are consumer privacy, data security, social media, domain name, and e-commerce issues. She represents clients in proceedings and investigations brought by the FTC, FDIC, CFPB, and other consumer protection agencies, as well as in trademark and copyright infringement litigation in federal courts.
Deborah Lodge is a Partner in the Patton Boggs Business Law and TechComm groups, where she focuses on e-commerce and …
In her multi-jurisdictional gaming practice, Kate navigates complex issues in connection with mergers and acquisitions, restructurings, reorganizations, financings, Internet gaming, sweepstakes, contests and promotions for gaming companies across the nation. Kate represents clients before regulatory agencies, including the Nevada State Gaming Control Board and Nevada Gaming Commission. Kate is an active member of the International Association of Gaming Advisors and International Masters of Gaming Law and has presented at numerous conferences and gaming seminars. In 2012 Kate was named a Rising Star by Super Lawyers, Mountain States and a Top Southern Nevada Legal Elite by Nevada Business Magazine.
In her multi-jurisdictional gaming practice, Kate navigates complex issues in connection with mergers and acquisitions, restructurings, reorganizations, financings, Internet gaming, …
Jason Howell is a member of Perkins Coie LLP’s Advertising, Marketing & Promotions and Trademark & Copyright practices. He focuses on advertising, promotion, consumer protection, media, and intellectual property law issues, and counsels businesses ranging from start-ups to Fortune 500 companies in a variety of fields including entertainment, food and beverage, gaming, Internet, medical devices, advertising, and retail. Jason has extensive experience in advising businesses on how to structure contests, sweepstakes, and related games, as well as drafting contest and sweepstakes rules and advertising and promotion-related agreements. Jason also regularly counsels his clients on false advertising, claim substantiation, IP infringement, and right of publicity issues.
Jason Howell is a member of Perkins Coie LLP’s Advertising, Marketing & Promotions and Trademark & Copyright practices. He focuses …
Behnam Dayanim is a partner in the Washington, DC, office of Paul Hastings, where he chairs the firm’s Advertising, Marketing and Promotions practice. Mr. Dayanim regularly counsels clients on the applicability of state and federal gaming and advertising laws to their activities and represents them in litigations and government investigations. His gaming-related work focuses on internet gaming and emerging forms of social and mobile gaming, and his expertise in advertising and marketing matters includes the Lanham Act, the Telephone Consumer Protection Act, Telemarketing Sales Rule, CAN-SPAM and both FTC and state enforcement of deceptive and unfair trade practices laws.
Behnam Dayanim is a partner in the Washington, DC, office of Paul Hastings, where he chairs the firm’s Advertising, Marketing …
Robert J. deBrauwere is co-chair of Pryor Cashman’s Digital Media Practice Group. Mr. deBrauwere has spent nearly two decades at the forefront of intellectual property and compliance law as relates to digital advertising, online publishing, video gaming, social media, entertainment, licensing and promotions (including sweepstakes, contests and giveaways). He is frequently called upon by the press to comment on digital media and intellectual property topics, and to educate attorneys, insurance underwriters, and law school students on current issues in digital media, unfair competition, trademark law, and social media compliance.
Robert J. deBrauwere is co-chair of Pryor Cashman’s Digital Media Practice Group. Mr. deBrauwere has spent nearly two decades at …
David Leichtman is a partner in the trial practice of the New York office of Robins, Kaplan, Miller & Ciresi L.L.P. He founded the New York office of the firm in 2010 with two other partners in order to expand the firm’s national trial practice and capabilities. <p></p>
<p> David has tried a variety of complex matters in federal and state courts around the country. The types of matters he handles include patent, copyright, trade secret and trademark cases, as well as other kinds of business litigation involving antitrust, contract, fraud, and other business torts. Among other things, he has represented Publishers Clearing House, including the defense of individual and class action consumer protection actions and government enforcement actions relating to the promotion of its sweepstakes programs. He has significant experience in a variety of industries including: media, entertainment and information; consumer electronics; life sciences, and the retail sector. His work also involves monetization of IP portfolios.</p>
David Leichtman is a partner in the trial practice of the New York office of Robins, Kaplan, Miller & Ciresi …
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About Patton Boggs LLP
Patton Boggs has been a leader in public policy, business and litigation since its founding in Washington DC over fifty years ago. Patton Boggs has maintained a reputation for cutting-edge counseling and advocacy by advising clients on compliance with regulatory issues, working closely with Congress and government agencies, litigating in courts across the country, and negotiating business transactions around the world. With offices in Washington DC, New York, New Jersey, Dallas, Denver and Anchorage, and internationally in Doha, Riyadh and Abu Dhabi, more than 550 lawyers and professionals provide comprehensive, practical and cost-effective legal counsel to clients around the globe. For more information, visitwww.pattonboggs.com.
About Brownstein Hyatt Farber Schreck, LLP
Founded in 1968, Brownstein Hyatt Farber Schreck practices in the areas of gaming, corporate law, litigation, intellectual property, real estate, natural resources and public policy. With 260 attorneys and legislative consultants in offices across the western U.S., Atlantic City and in Washington, DC, the firm works in industries ranging from hospitality, private equity and telecommunications, to technology, construction, energy, banking and finance and water. Recognized as one of the nation’s premier gaming practices, Brownstein’s Gaming Law Group assists clients in obtaining approvals for gaming licenses, public offerings, financings, restructurings and M&A. Their focus extends to large, complex, multi-jurisdictional transactions throughout the U.S., Japan, Macau, Puerto Rico, Spain and Great Britain. For more information visit: www.bhfs.com.
About Perkins Coie
Founded in 1912, Perkins Coie LLP has more than 850 lawyers in 19 offices across the United States and Asia. As a full-service law firm, Perkins Coie provides a complete array of corporate, commercial litigation and intellectual property legal services to a wide range of clients—from FORTUNE 50 corporations to small, independent start-ups, as well as public and not-for-profit organizations. Perkins Coie is routinely recognized as a leading law firm—nearly a quarter of all Perkins Coie attorneys have been selected for inclusion in The Best Lawyers in America 2013, and Chambers USA 2012 recognized 37 Perkins Coie practice areas and ranked 18 areas in Band 1.
About Paul Hastings LLP
Paul Hastings is a leading global law firm with 20 offices throughout Asia, Europe and the United States. The firm is ranked second on The American Lawyer’s A-List of the most successful law firms in America. Paul Hastings’ Advertising, Marketing and Promotions Practice provides counseling, regulatory and litigation services to clients in a wide range of industries. Its representations include Federal Trade Commission and state regulatory investigations, Lanham Act and consumer-class-action litigation, gaming regulatory concerns and National Advertising Division proceedings. Please visitwww.paulhastings.com for more information.
About Pryor Cashman LLP
Founded in 1963, Pryor Cashman is a premier full-service, mid-sized, law firm of over 125 attorneys with offices in the heart of New York City, as a well as an office in Los Angeles. The firm has earned a national reputation for its litigation, intellectual property, media and entertainment, and real estate practices. An entrepreneurial law firm, unencumbered by bureaucracy, the firm’s unique culture attracts independent thinkers with prestigious pedigrees who deliver creative, cost-sensible solutions for businesses of all shapes and sizes.www.pryorcashman.com.
About Robins, Kaplan, Miller & Ciresi LLP
National litigation firm Robins, Kaplan, Miller & Ciresi L.L.P. has been advocating on behalf of clients for more than 70 years. With over 250 attorneys in New York, Minneapolis, Los Angeles, Atlanta, Boston and Naples, FL, the firm represents some of the world’s largest companies, most innovative start-ups, and individuals from virtually every industry and walk of life. Areas of practice include intellectual property litigation, antitrust and trade regulation, complex business litigation, entertainment and media litigation, financial litigation, trademark and advertising disputes, among others. The firm’s attorneys stand beside their clients to assess and manage risk through the life-cycle of their specific business goals and most critical legal challenges—both in and out of the courtroom. www.rkmc.com.