Once upon a time, paid endorsements were limited to celebrities (even D list celebs), sports stars, and famous experts. That’s all changed with social media where just about anyone with enough followers can become an “influencer” in a certain area or field.
With that influence comes money. Every day, brands flock to influencers offering cash in exchange for the promotion of their products and services on the influencer’s blog or social media accounts.
The formula for success seems easy enough; use the product, address your followers, disclose if it is sponsored or paid review, and give an honest review. Unfortunately, a new lawsuit involving model Molly Sims should be a huge warning to influencers that even they can be hauled into court for trademark or copyright infringement—regardless of whether they manufacture or have a stake in the product besides being paid to promote it.
Molly Sims was paid to write a blog post promoting a brow product by Rodan & Fields called “Brow Defining Boost.” Shortly after posting it, Petunia Products filed a lawsuit claiming that the product infringed on their “Brow Boost” trademark that they’ve been using for over twenty years. They also named Molly Sims in the suit, writing that since she promoted the infringing product on her website, she should also be liable for trademark infringement, trademark dilution, unfair competition, and false advertising.
Molly Sims was forced to hire attorneys who argued in court that she should be dismissed from the lawsuit because she doesn’t actually make or sell the product and was merely a third-party giving a paid review. The judge overseeing the case did not agree and ruled that Moly Sims should remain a party to the suit.
The case is still working its way through the system, and we don’t know what the end result will be. But for now, the standard has been set that influencers can be pulled into trademark, patent, and copyright infringement lawsuits on behalf of the company they are promoting.
How Can Influencers Protect Themselves?
This is a tricky situation, and influencers who are promoting brands should review the contracts they have for sponsored content carefully. It may be necessary to create agreements that put liability back on the sponsor if an issue of infringement arises. When possible, influencers should have an ongoing relationship with an attorney whom they can run questionable content by. Contests, promotions, and even affiliate marketing must all abide by certain laws. If you cross the line, it could cost you thousands, and sometimes millions, of dollars to deal with. Finally, you may want to consider advertising insurance when appropriate.
If you have any questions, you need help, or you’d like feedback regarding your liabilities as an influencer regarding a campaign you are working on, please contact us at 888-666-0062 to schedule an appointment.