Product reviews provide some of the more interesting and useful content on social media feeds today, but it comes with legal risks. Companies whose products are the subject of these posts are increasingly taking legal action against social media influencers for content that they view as misleading, dishonest, or infringing on their intellectual property. Thus, content creators should understand the relevant potential legal risks before hitting that “post” button, especially if they are receiving compensation or are themselves selling competitive products. If you have questions regarding the legal issues that content creators should keep in mind, an experienced internet attorney can help.
Trademark infringement
When posting content about branded products, the risk of trademark infringement arises. Trademark infringement occurs when someone uses a trademark, such as a brand name or logo, without permission, and it causes confusion among consumers. Here are some key points to remember:
- Use the trademark responsibly: When posting a product review, it’s important to use the brand’s trademark – like their name, or their logo – in a descriptive, factual manner. Avoid using the trademark in a way that may suggest you are officially associated with the brand.
- Parody and fair use: While trademark law protects brand owners, there is room for criticism, parody, and commentary under the doctrine of fair use. However, it’s essential to be aware of the fine line between expressing your opinions and crossing the line into infringement.
False advertising
Similarly, the improper use of a brand name could create claims for false advertising. False advertising occurs when a business makes false or misleading claims regarding its product or service that can potentially harm consumers or competitors in the marketplace. The elements of a false advertising claim in the online review context are: the reviewer made false or misleading statements; the statements deceived, or had the capacity to deceive, consumers; the deception had a material impact on the consumers’ purchasing decision, and; the company has been, or likely will be, injured as a result of the false or misleading statement. If you are an influencer or a business owner and you are reviewing another business’s product, consider these guidelines to minimize risks of false advertising claims:
- Verify claims: Before including any information about a product’s features or benefits in your review, do your research and ensure that the claims are accurate.
- Don’t exaggerate: Avoid making exaggerated claims or statements about a competitor’s product that could mislead consumers and negatively impact the company’s business.
Trade libel and defamation
Reviews should be honest and not misleading. Otherwise, the post could be seen as defamatory. Trade libel is a form of defamation that could arise when disparaging the products of a company. The elements of trade libel in the online review context are: a written or oral false statement; published or distributed to a third party; with the intent, or reasonable belief, that the statement will cause financial loss for the business; there is in fact a financial loss for the business (i.e., special damages); and the statement was made with express or implied malice – that is, knowing the statement was false or with reckless disregard as to whether the statement was true or false.
The difference between trade libel and defamation per se is that defamation per se claims involve the business’ reputation, whereas trade libel claims involve the quality of a business’s products or services. Further, trade libel claims require proof of special damages, whereas defamation per se claims do not. To stay on the safe side, consider taking the following steps when posting a review:
- Share opinions, not facts: Trade libel and defamation claims require a “false statement,” so take care to present your opinions as opinions – not as facts. By making clear that your review is an opinion sharing your experience of the product, as opposed to sharing a fact about that product, you will be more likely to succeed if faced with either claim.
Unfair competition
Influencers also need to be particularly aware of the risks that arise when posting about products or companies that are in competition with products that they themselves offer. For example, an influencer that sells health products and negatively critiques competitive products for not being as “healthy” as claimed could be alleged to be unfairly competing. Unfair competition refers to deceptive or dishonest business practices that harm competitors or consumers. To reduce your risks of an unfair competition claim:
- Fact vs. Opinion: Be careful not to speak about a business’s product as though you are stating facts. Conveying statements of your opinion is a better option, because a claim of unfair competition requires a statement of false facts about a brand or its product.
- Disclose any conflicts of interest: If you have a personal or financial relationship with the brand or a competitor, you should disclose this information in your review. Failing to disclose conflicts of interest can be seen as misleading.
Federal Trade Commission violations
The Federal Trade Commission (FTC) is a government agency that protects consumers by preventing deception and unfair business practices. The FTC sets and enforces the legal standards that influencers must abide by when making product endorsements. If a brand has paid you to review their products or given you products in exchange for posting a review, you must follow FTC regulations. Keep the following advice in mind to comply with FTC guidelines:
- Always disclose any financial, employment, personal, or family relationship with a brand whose product you are talking about. Any person who is paid to promote a product or service must disclose that relationship to their followers.
- Always disclose that relationship in an unambiguous, easy to find, easy to read, and understandable manner.
- Always post these disclosures on every platform you share content.
- Do not post fake reviews about products you never received or claiming to enjoy products that you actually thought were terrible.
- Do not use shorthand like “sp” or “spon” in your disclosures, instead make sure to use clear hashtags like “#sponsored” or “#advertisement” and ensure these are prominently displayed in your posts.
Conclusion
Posting product reviews online can be a valuable way to share your insights and help other consumers make informed decisions. However, it’s crucial to do so responsibly and legally. Keep in mind that you can reduce your risks if your review is not false or misleading and does not cause the other consumers to be confused by your use of another company’s trademark in their logo, brand name or product name. If you have other questions about posting online reviews, reach out to a member of our team for guidance.
Andres Munoz is admitted to practice law in New York and Florida.
