Mediaboss Marketing

President Joe Biden signed a congressional bill late last year banning TikTok on federal government devices, and now more than half of the states, including Iowa, have followed suit.

There also is talk in Washington about banning the app altogether because it is owned by a Chinese company, ByteDance, with officials fearing user data being accessed by the communist government.

Often omitted from discussions about the popular social media app patronized by more than 1.5 million Americans is the impact on influencers who depend on the platform for their livelihood.

That also has tax implications.

Social influencers increasingly are commanding marketing and advertising dollars that once went to legacy media, such as newspapers. Total influencer spending in the U.S. is projected to hit $6.16 billion this year as opposed to $5.51 billion for newspapers.

Instagram, by far, commands 44.6% of influencer dollars, followed by YouTube, 17.7%, and TikTok, 17.1%.

Influencers receive free gifts, hospitality and other amenities, not included in the above figure. The field also is monitored closely by the Federal Trade Commission, with legal consequences for those who fail to disclose endorsements and other connections with corporate brands.

In 2021, the FTC sent notice of penalty offenses to some 700 businesses concerning deceptive practices in such venues as customer endorsements, testimonials, reviews and influencer marketing.

The agency recently settled for $9.4 million with Google LLC and iHeartMedia for airing a whopping 29,000 deceptive endorsements by radio hosts who promoted the Pixel 4 phone without ever actually using it.

FTC rules support truth in advertising laws. Media outlets and influencers must disclose their brand partnerships in clear, unambiguous language. In other words, they cannot drop a phrase about that partnership in the body of a review about a product or require a viewer to click a link for that information.

If the endorsement is in a photograph, without text, such as might appear in the app Snapchat, the disclosure has to superimposed on the image itself. If accompanied by text, the sponsorship or paid advertising has to be in a prominent upfront position.

In videos, the disclosure should be in the description and spoken about during the session or superimposed on it.

Olivia Hanson, a New York-based social influencer and graduate of Iowa State University, currently is a campaign manager on the business development team at Dotdash Meredith. Her video segments do not interfere with her day job, she says, because the brands that I work with on an influencer basis reach out to me via my personal email. As such, she notes, there is no conflict of interest between the two.

Hanson also maintains a comprehensive personal website that includes brands she has worked with as well as her activities across media platforms, including influencer work on Instagram and TikTok.

Hanson says she and counterparts are under no obligation to post about products unless they are under contract with the brand. However, she adds, companies are gifting in good faith in hopes that youll post something. Many are open to constructive criticism if an influencer doesnt like the product or service for whateverreason.

In addition to following FTC guidelines, Hanson believes that disclosures build trust and community.

Product review videos require a lot of work. It starts with concept ideation for a video, research on whether or not itll resonate with my audience, then producing the video, then editing, then planning the social post. Its no small feat!

Here are samples of her work from TikTok.

Reputation plays a big role in product reviews, she says. Honesty remains the best policy if you want to enhance your audience.

As for TikTok, Hanson gives a reasoned answer. If it is better for America to ban the application, she accepts that, However, something would have to come in its place considering the amount of people, information, and commerce that happens there now.

That commerce also can be taxed, which often comes as a surprise to an influencer whose posts go viral. State and federal governments worried about TikToks algorithms and service terms might pay more attention to the fiscal impact of banning the platform.

The IRS believes influencer payments, gifts and other amenities are all taxable, typically requiring a 499 form. Turbo Tax has TikTok-styled videos to help influencers navigate the tax code.

Banning TikTok will affect tax receipts until that revenue flows to other social media, primarily platforms like Facebook, Instagram, YouTube and Snapchat.

More:
Social influencer ethics and the implications of a TikTok ban - Iowa Capital Dispatch

Sports fans watching hockey on TNT and TBS may have seen stars from across the NHL trading stories about hockeys biggest hype man: Gordo St. John.

But just who plays the mysterious fictional character that even Wayne Gretzky has an encounter with?

Heading into Warner Bros. Discoverys first year as the home of the Stanley Cup finals, the company enlisted NY Rangers fan and Stranger Things star David Harbour to headline its cross-platform promotional campaign, where his character has been hired by the NHL on TNT teambut Gordos ideas might not always be the best.

The full spot unveiling Harbour as Gordo St. John premiered Tuesday night on TBS during Game 1 of the Rangers vs. Devils series.

Last week, the first teaser debuted across NHL on TNT, B/R Open Ice, NHL on TNT studio talent, and NHL league and club social talent. In a single day, it pulled in 1.5 million views and over 100,000 engagements, also running across the WBD portfolio through Mondays opener.

Gretzky, Liam McHugh, Anson Carter, Paul Bissonnette and Henrik Lundqvist are heavily featured in the campaign, as well as a host of other top players from across the NHL.

Harbour, who is a frequent presence at Madison Square Garden to cheer on the Rangers, told Adweek that his part of the campaign was shot in a single day and included him getting hit in the face by a rubber sea urchin shot by Biz [Bissonnette].

Those guys are all very funny, from the creatives who wrote the script to our inventive director to those nuts that sit behind the desk and call the games who graciously played with me for a day, Harbour said. They were very open to my ideas, but I had seen the other spots theyd worked onlike the Ted Lasso and the Bryan Cranston baseball oneand I knew if I just did what they had written, Id be well served.

For Harbours part, he was eager to participate in the campaign because he was told that if I did this, theyd give the Stanley Cup to the Rangers this year.

I am a hockey fan, I am very happy that Gordo St. John and his terrible ideas are fictional, but yes, its a dream to have Gretzky talk about you in an interview, even if its all pretend, Harbour added.

Done entirely internally, and creatively led by Tyler Lassiter, the full-length spot will run across WBDs portfolio and in paid placements across social, digital, CTV and linear. In addition, a finals-specific version will launch closer to the championships.

Since this is the first year weve had the Stanley Cup [finals], the company has really rallied around this as an effort, Ed Romaine, svp and head of marketing and brand development at WBD Sports, told Adweek.

That also involves partnerships across WBDs portfolio, including a CNN takeover, OOH campaigns and Food Network spots.

Im excited that everyone was together and provided support to make sure it felt like a marquee event for the company, Romaine added.

The concept for Gordo St. John was created last season, and WBD shot footage with players during the NHL player media tour in the offseason, which then became the teaser.

We were trying to come up with something that was creative and innovative. David Harbour has a great resonance universally because of Stranger Things, said Romaine. We wanted to thrill and get core fans excited, but also make the game approachable and funny to folks that are more casual so they feel like they cant miss out.

The NHLs marketing team described WBD as phenomenal partners, and the two groups have been in collaboration since early in the process.

Theyve been very open to our input and feedback, and we as a league value all of our rights holders and the talent and input that they bring, Casey Hall, the leagues svp of marketing and consumer insights, told Adweek. But we also enjoy having a seat at the table and being part of those conversations so that we can coordinate and plan what we at the league are going to do so that were complementary to each other.

Warner Bros. Discovery learned last year that social marketing can play a huge role in growing fans of the game and leaned into digital efforts to get the Gordo St. John campaign on a wide radar.

We feel things like the image campaign and tune-in spots really cover the core fan, while were trying to evangelize a little bit broadly into more of a casual fan as well, Romaine said.

Digital and social is a key component of the media mix for us, added Hall. Its critical to expand reach, to reach younger audiences and to reach audiences who may not already be on the linear networks and platforms that were advertising on.

WBD is already planning potential offshoots for the Gordo St. John campaign, including a blooper or outtake reel, limited-run merchandise and other ways to popularize the character.

In addition to the campaign with Harbour, WBD is launching a Stanley Cup-themed mini-social series on House of Highlights and B/R National for broader sports fans, and teamed up with current pro female hockey player Reagan Rust of the Metropolitan Riveters for social recaps and explainers.

The group is also supporting NHL initiatives like a bracket challenge with a Beat Gretzky league where fans can make their picks against the hockey legend, and the Stanley Cup Tour, which will see the Cup visit the B/R HQ for content and more.

Outside of WBD, the NHL also launched a playoff campaign on Monday in partnership with agency Highdive. The three spots premiered nationally Monday night across the ESPN networks and will run Tuesday night on TBS.

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Meet Gordo St. John, the Man Everyone in Hockey Knows - Adweek

17 April 2023

A.S & Associates

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With the growing scope for globalization of goods and servicesthe need to protect those goods and services along with theentities has been more acute than ever. Hereas, IntellectualProperty Law marks the territory of goods and services under thename of trademark to protect it from any trespass. Trademark tracesthe source of the product rather than the product itself to guardit from any harm. According to section 2(8) of The Trademarks Act2009, a trademark can be any symbol, word, number, phrase, design,or any combination thereof which is used to identify the source ofgoods or services. It is a sign that marks the distinction amongthe goods or services of one enterprise from those of otherenterprises. It can be identified as a lawfully protected abstract,word, number, phrase, design, or any combination thereof related toan organization or a selected product that differentiates it fromthe other entities within the market. Though the periphery oftrademark is a well guarded territory, the goods and servicessometimes get passed off under deception of others. Passing offrefers to the act of passing off someone else's goods orservices as the goods or services of others.

Under section 96(d) of The Trademark Act 2009, suit forinfringement can be brought against for passing off arising out ofthe use by the defendant of any trademark which is identical with,or, deceptively similar to, the plaintiff's trademark, whetherregistered or unregistered. The underlying principle behind hailingthe context of passing off is that "A man is not to sellhis goods under the pretense that they are the goods of anotherman" (Perry v Truefitt (1842)).Section 24(2) of the Trademark Act, 2009 permits the person wrongedto take action against any person for passing off goods or servicesas the goods or services, as the case may be, of another person inthe cases of unregistered trademark. Whereas a suit forinfringement is available for only registered trademarks, an actionof passing off is available for both registered and unregisteredtrademarks though the aim sought to be achieved remains the same.Under section 97(1) of the Act, the actions that can be soughtagainst the wrongdoer namely the reliefs available are permanentinjunction, interim injunction, temporary injunction, damages oraccount of profits and delivery of the infringing goods fordestruction along with the cost of legal proceedings. The courtorders one or more parties to do or to abstain from doing certainacts conforming the balance of the events ensued, which arereferred to as injunction. Temporary injunction is issued beforethe start of a trial and they expire at a specified time. It helpsto maintain the status quo until the disposal of the case orfurther order. Permanent injunction mostly gets issued at the endof a trial along with the court's final judgment. Theconsequences of permanent injunction lasts perpetually or as longas the relevant circumstances are obtained.

In the matter of passing off the plaintiff has to provedeceptive similarity among the goods and services of the parties,the confusion mark among the plaintiff's and thedefendant's goods and services that are likely to causeconfusion among the goods and services which will entail injury orlikelihood of causing injury to plaintiff's goodwill. The Houseof Lords inReckitt & Colman Products Ltd. v. BordenInc. and Others [1990] 1 All E.R. pointed outReputation, Misrepresentation and Damage to goodwill the'Classic Trinity' in an action for passing off. As they arethe prerequisites in proving a passing off. The views wereconsolidated in the case of Shab Quat Haider vs MAl-Amin 1987 BLD (AD) where the findings were,"Meaning of foundation of passing off action is deception orpossibility of deception. In passing off action it is never theplaintiff's case that he has himself been deceived by theaction of the defendant. His case is that other people, the public,have been deceived by representing the name or goods of thedefendant as that of the plaintiff. If there is a similaritybetween the two names which is likely to create confusion in theminds of the public that while they are doing business with the onethey are in fact doing business with the other then this comeswithin the ambit of passing off."

When it comes to the businesses, the bigger the market theheavier the burden upon the businesses to maintain its monopoly.However, other businesses infiltrate under pretense. That's whyinjunctions are more likely to be sought than damages or monetaryrelief to rip the growing obstacles in the bud and permanentinjunction is comparatively more popular in this case. In the caseof Dominous Pizza and others Vs. Domino's PizzaInc.(61 DLR (2009) 780) the plaintiff's trademark'Domino's Pizza' had a reputation and goodwill inBangladesh. The defendant started producing pizza and pizza relatedproducts by using plaintiff's trademark 'DominousPizza' and thereby made huge profits and caused irreparableloss to the plaintiff. Decree for permanent injunction was prayedby the plaintiff. In the petition the court directed the fellowDistrict judge to dispose of the case immediately following thefair prayers. Permanent injunction allows to restrain thedefendants whether themselves or their fellow people from using,preparing, storing, marketing, selling or offering for sale,passing off or attempting to pass off any goods bearing or underthe trademark of the plaintiff's or any other trademarkconfusingly similar or identical to the trademark of theplaintiff.

A more subtle use of deception can be seen in the growing marketof life saving drugs where permanent injunction was sought. In thecase of Universal Pharmaceutical Ltd. and another Vs.Social Marketing Company and others 50 DLR (1998)Social Marketing Company started marketing life drug under the nameand trademark 'Orsaline' in 1983. It was alleged thatUniversal Pharmaceutical Ltd copied and imitated the trademark'Orsaline' in similar get up, packet, color, size etc. tomake financial gain from the lifesaving drug 'Oralsaline'.Social Marketing Company owning the product 'Orsaline'demanded for a permanent injunction restraining the defendant frommarketing and selling their product using the trademark'Oralsaline' and withdrawal of all products of them fromthe market along with a decree for compensation. The court foundthat phonetically and visually the marks 'Orsaline' and'Oralsaline' invited confusion and deception amongcustomers and opined that Universal Pharmaceutical Ltd. can not beallowed to run the business marketing and selling its product'Oralsaline'.

It can be said that the foundation of a passing of action isalways deception or possibility of deception, but is not an actionof deceit. The purpose of any action sought against passing off isto curb the deception and to reduce the loss suffered or likely tobe suffered by the person wronged. Injunction herein saves both thetrademark owner and the consumer by drawing the restraining linearound the periphery of the trademark owner's business.

About the Author Israt Jalil Mim is an Intern of the Research Wing at A.S &Associates.

The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circumstances.

POPULAR ARTICLES ON: Intellectual Property from Bangladesh

Anand & Anand

The Patents Act 1970, along with the Patents Rules 1972, came into force on 20th April 1972, replacing the Indian Patents and Designs Act 1911. The Patents Act was largely based on the recommendations of the Ayyangar Committee Report headed by Justice N. Rajagopala Ayyangar. One of the recommendations was the allowance of only process patents with regard to inventions relating to drugs, medicines, food and chemicals.

L. S. Davar & Co.

An invention has to satisfy the conditions of Novelty, Inventive step, and Industrial Applicability in order to be patentable in India, just like any other jurisdiction.

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Injunction As A Way To Prevent Passing Off Of A Trademark ... - Mondaq News Alerts

Ministry of Consumer Affairs, Food & Public Distribution

Department acknowledges the significant role of influencers in shaping consumer opinions, emphasizing the need for transparency, integrity, and professionalism

Endorsement Guidelines require clear, prominent, and hard-to-miss disclosures for endorsements, including terms like "advertisement," "sponsored," "collaboration," or "paid promotion."

Endorsement guidelines address the rapidly growing digital world, with advertisements extending beyond traditional media, making consumers vulnerable to misleading ads

Influencers & Celebrities must only endorse products or services they have personally used or experienced and conducted due diligence on

Development of a model draft agreement between influencers and brands is required

Influencer & Creator Empowerment is a top focus of the Department of Consumer Affairs

Department of Consumer Affairs aims to work closely with influencers, content creators, and agencies to foster a responsible and sustainable industry

Department plans to collaborate with creators, influencers, influencer marketing companies and industry to develop educational resources to make the influencers and creators aware about Dos and Donts

Dialogue was welcomed by creators, influencers, agencies, and the industry, who acknowledged the significant contribution of influencer marketing to the country's GDP

The round table discussion marked a significant step toward fostering a transparent and responsible influencer marketing industry, ensuring consumer protection and empowering creators and influencers in their endeavors

Posted On: 19 APR 2023 6:48PM by PIB Mumbai

Mumbai : 19 April 2023

Department of Consumer Affairs, Government of India, organized a round table discussion with influencers, content creators, and their agencies on the recently released guidelines for celebrities, influencers, and virtual influencers on social media platforms. The guidelines, titled "Endorsements Know-hows!", aim to ensure that individuals do not mislead their audiences when endorsing products or services and that they are in compliance with the Consumer Protection Act and any associated rules or guidelines. The roundtable discussion took place on April 19, 2023, at 10:30 AM at Mumbai.

The roundtable was chaired by Sh. Rohit Kumar Singh, Secretary, Department of Consumer Affairs, Govt of India, who emphasized the importance of education for influencers and creators regarding laws and regulations. He also reassured attendees that the government does not intend to stifle creativity and the industry but to protect consumer interests without hindering creativity and business. Sh. Singh suggested the formation of a self-regulatory organization for influencer marketing companies and the development of a creator or influencer recognition program in collaboration with the industry.

Sh. Singh also exploring partnerships with industry, and influencer marketing companies to develop and disseminate resources, such as the guidelines and FAQs, to help influencers and creators better understand and comply with the guidelines. He also acknowledged that there is a significant role that influencers and content creators play in shaping consumer opinions and purchasing decisions. As the industry continues to evolve, it is essential for all stakeholders to work together to maintain a high level of transparency, integrity, and professionalism in influencer marketing.

Sh. Anupam Mishra, Joint Secretary, Department of Consumer Affairs, Govt of India, presented a detailed presentation on the recently released guidelines, Endorsement Know-Hows. He stated that Department is actively encouraging influencers, content creators, and their agencies to provide feedback on the guidelines and their implementation. This feedback will help the Department identify areas for improvement and make necessary amendments to ensure that the guidelines remain relevant and effective in safeguarding consumer interests and promoting responsible influencer marketing practices.

Manisha Kapoor, CEO, Advertising Standards Council of India, called for digital platforms to take responsibility for advertising and the structuring of influencers. She also proposed the development of a model draft agreement between influencers and brands and urged platforms to incorporate guidelines for misleading ads in their community guidelines.

The industry raised concerns about the recognition of platform disclosure tools and sought clarity on audio and video advertising on social media. They emphasized the need for swift enforcement, considering the vast scope of the influencer marketing industry.

The dialogue was welcomed by creators, influencers, agencies, and the industry, who acknowledged the significant contribution of influencer marketing to the country's GDP. Key observations and suggestions from the meeting included the practice of self-imposed reasonable care and precaution by creators and influencers. They expressed optimism that regulation would strengthen and empower the industry.

The industry agreed on the importance of education for influencers and creators, as well as the role of influencer marketing in advertising. They stressed that content should have disclosures that are hard to miss for consumers and emphasized the need for creator empowerment as a top focus.

The guidelines, released in response to the rapidly growing digital world, require that endorsements be made in simple, clear language, using terms such as "advertisement," "sponsored," "collaboration," or "paid promotion." Individuals must not endorse any product or service that they have not personally used or experienced or in which due diligence has not been done by them. Disclosures must be placed in the endorsement message in a clear, prominent, and hard-to-miss manner.

The guidelines align with the Consumer Protection Act of 2019, which established guidelines for protecting consumers from unfair trade practices and misleading advertisements. The Department of Consumer Affairs published Guidelines for prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022 on June 9, 2022, outlining the criteria for valid advertisements and the responsibilities of manufacturers, service providers, advertisers, and advertising agencies.

The round table discussion marked a significant step toward fostering a transparent and responsible influencer marketing industry, ensuring consumer protection and empowering creators and influencers in their endeavors.

Following the round table discussion, the Department of Consumer Affairs, Government of India, reiterated its commitment to working closely with influencers, content creators, and their agencies to ensure transparency, compliance, and growth in the influencer marketing industry. The discussion highlighted the need for ongoing dialogue and collaboration between all stakeholders to address concerns and foster a responsible and sustainable industry that benefits both consumers and creators.

The round table was attended by Influencers, namely, Aanchal Agrawal, Prasad Ved Pathak, Rakesh Tiwari and Kushagra Tayal. It was also attended by Mr Gurpreet Singh, One Digital Entertainment, Dhruv Chitgropekar, Big Bang Social, Jalak Raval, Taag One, Ritesh Ujjwal, Confluence, Ajay Kulkarni, Barcode Entertainment, Suneil Chawla, Influencer.in, Viraj Seth, Monk Entertainment, Kevin Lee, Yuvaa and Shweta Purandare, AdExpert.

In the coming months, the Department of Consumer Affairs plans to organize more such round table discussions. These events will provide an opportunity for influencers, content creators, and their agencies to ask questions, seek clarification, and share their experiences and best practices in implementing the guidelines.

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Requirements*Penalty for non-compliance**Representative: The NewPrinciples and Procedures initially reiterate the representativerequirements for social network providers (e.g., "1 milliondaily access" requirement for appointing a representative asreal person/legal entity and "10 million daily access"requirement for establishing a branch in the form of an equitycompany). The representative of a social network provider with morethan 10 million daily accesses has full technical, administrative,legal, and financial liability for social network provider'scompliance.

Incorporation requirements

ITCA states that the entity that meets the followingrequirements is deemed as the representative:

Documentation attesting the above and the following documentsmust also be submitted to the ITCA:

Additionally, if the representative is a real person where thesocial network provider's daily access from Trkiye doesnot exceed 10 million, documents showing that the representative isa Turkish citizen and resident in Trkiye must be submitted tothe ITCA.

Any changes to the above documentation or information must benotified to the ITCA immediately and no later than 72 hours.

Duties of the representative

The representative has the following duties:

Other requirements are as follows:

*Having a registered email address (i.e., KEP address)was not a regulatory requirement for representatives previously. Itappears that this was introduced to facilitate the delivery ofnotifications to the representative.

*If the social network provider fulfills the representativerequirement, only one-quarter of the administrative fines will becollected.

The New Principles and Procedures indicate that the socialnetwork providers must facilitate the receipt of the individualapplications. Accordingly, users should be able to send theirrequests in Turkish language, and social network providers mustrespond to such requests in Turkish.

*Upon the complaint of a user to the ITCA, the ITCA evaluateswhether the social network provider is complying with itsrequirements to respond to users. The ITCA evaluates the usercomplaints collectively during the semi-annual (transparency)report periods. In its evaluation, the ITCA takes into accountwhether the social network provider does the following:

The report to be prepared on the individual applications (i.e.,Article 9 and 9/A requests) must also be published on the socialnetwork provider's website without revealing any personaldata.

In addition, the ITCA states that social network providers mustcomply with accountability principles and submit any necessaryinformation and documentation as requested by the ITCA to ensuretransparency.

The advertisement library must be easily accessible on thesocial network provider's website.

The ITCA clarifies that the representative must directly respondto user data requests related to the above offences.

If social network providers comply with the userdata/information request, the internet bandwidth reduction order isrevoked.

The New Principles and Procedures clarify that the basic userinformation and information that may be required by the ITCA mustbe prioritized during the exercise of the data localizationrequirement.

The New Principles and Procedures clarifies that social networkproviders must take into account the following during the displayof content, advertisements and provision of services tochildren:

The New Principles and Procedures state that the social networkproviders must inform the ITCA regarding this mechanism as part ofsemi-annual reports.

Social network providers must provide the requested informationand documentation within no later than three months.

The New Principles and Procedures state that the ITCA may informthe social network providers regarding the aspects of preparationand disclosure of the crisis management plan.

2. The ITCA can issue an advertisement ban for up to six months(the advertisement ban is not automatically lifted followingcompliance with the ITCA order)

3. The ITCA can request from the judgeship of peace to order aninternet bandwidth reduction by 50% (irrespective of theadvertisement ban)

4. Internet bandwidth reduction by 90% for failure to complywithin 30 days of the initial internet bandwidth reductiondecision

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ITCA Published New Principles And Procedures For Social Network ... - Mondaq News Alerts