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Know Your Fair Use, Disclosure and IP

This morning I received a note from a company that we’ve written about. The email was quite forceful in demanding that we immediately remove any references to the trademarked company name in our post and suggested that we link to their site utilizing a phrase instead.

Trademark Fair Usage

I’m guessing the company may have been successful in the past in manipulating people to remove the name and add the phrase – it’s an SEO ploy to get them ranked and reduce our ranking for their company name. It’s also ridiculous and sneaky, making me second-guess writing about the company at all.

I reminded the person from the company that I was utilizing their name under fair use and not using it to sell my goods nor were we using it as an endorsement. Virtually every company has trademarked names and there’s absolutely no reason you can’t use those company names in your writing. Here’s what the Electronic Frontier Foundation states:

While trademark law prevents you from using someone else’s trademark to sell your competing products (you can’t make and sell your own “Rolex” watches or name your blog “Newsweek”), it doesn’t stop you from using the trademark to refer to the trademark owner or its products (offering repair services for Rolex watches or criticizing Newsweek’s editorial decisions). That kind of use, known as “nominative fair use,” is permitted if using the trademark is necessary to identify the products, services, or company you’re talking about, and you don’t use the mark to suggest the company endorses you. In general, this means you can use the company name in your review so people know which company or product you’re complaining about. You can even use the trademark in a domain name (like walmartsucks.com), so long as it’s clear that you’re not claiming to be or speak for the company.

Copyright Fair Usage

It’s important to note that fair use extends to copyrighted material as well. We ask individuals and companies that republish our content in its entirety to remove our content quite often. Other publications, like Social Media Today, have direct permission to republish the content. Fair usage is quite different. According to the Electronic Frontier Foundation:

Short quotations will usually be fair use, not copyright infringement. The Copyright Act says that “fair use…for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” So if you are commenting on or criticizing an item someone else has posted, you have a fair use right to quote. The law favors “transformative” uses — commentary, either praise or criticism, is better than straight copying — but courts have said that even putting a piece of an existing work into a new context (such as a thumbnail in an image search engine) counts as “transformative.” The blog’s author might also have granted you even more generous rights through a Creative Commons license, so you should check for that as well.

Endorsements and Disclosure

The company also demanded that I post a disclosure policy in accordance with a website. I actually didn’t mind this request. While our terms of service and privacy policy have been approved and each of our relationships disclosed, having a formal disclosure policy seemed like a good addition, so we added a disclosure page to set better expectations on how we’re compensated regarding sponsorship, banner advertising and affiliate posts.

I did remind the company that the disclosure policy site was not approved by the Federal Trade Commission (US) so, while disclosure is required, having a policy isn’t necessarily required or helpful. We look forward to the FTC further clarifying how people disclose tweets, status updates and blog posts in the future. One company at the forefront of this is CMP.LY – who have built an application to create, track and categorize disclosure for large enterprise or highly regulated corporations.

A material connection is a relationship between the marketer and influencer that might materially affect the weight or credibility that consumers give to an endorsement posted by the influencer. Perkins Coie

I let the company know that if they had any issues with my post and affiliate link usage, we could immediately end the relationship. I wasn’t going to let a company force me to modify the way I write and share posts so they could better benefit. This is my blog, not theirs. They backed down and I’m confident they won’t be back – nor will I write about them ever again.

Disclosure: Always double-check with your attorney on this stuff and I’d encourage you to become a supporter of the Electronic Frontier Foundation.


© 2016 DK New Media.

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