1. Trademark, Copyright, and
Sweepstakes Basics
Legal Considerations for Marketing,
Branding, and Promotions

2. Presenter
Patricia A. Foster, Frost Brown Todd LLC
• Litigation and IP practice includes business, advertising,
media, and IP issues.
• Previously enjoyed many years in the hospitality industry
with an HRI degree from Michigan State University and
sales and marketing positions for two international hotel
chains.
• Worked overseas as a hospitality consultant with projects
in Europe, Australia, and North Africa.
Austin Padgett, Frost Brown Todd LLC
• Practice focuses on intellectual property and advertising
litigation and transactions.
• Represents consumer marketing companies—from small
start-ups to some of the best-known brands in America—in
delivering practical solutions to problems.
• Works as a professional musician and has a recording
studio in his home basement.

3. This is Marketing.

4. This is you.

5. Building Your Brand
• Meet the Definitions
• Interaction with Consumers
• Interaction with Other Brands

6. Building Your Brand

7. Interactivity

8. What Brands Want . . .

9. Definitions
Sweepstakes Contests

10. Definitions
Sweepstakes Contests
Game of Game of
Chance Skill

11. Definitions

12. Definitions

13. Definitions

14. Definitions

15. Definitions

16. Lotteries

17. Lotteries

18. Lotteries

19. Lotteries
You are not
allowed to run
a lottery.

20. Lotteries
Remove an
element.

21. Lotteries

22. Lotteries

23. Lotteries

24. Sweepstakes—Free Entry
•Equal Dignity Rule
•Consideration is a benefit/detriment:
•Store visits (Ohio)
•Attendance at drawing (Iowa)
•Self-Addressed Stamped Envelope
(Vermont)

26. Selling Stuff

27. Early Brand Interaction

28. Media Shift

29. User-Generated Content
From Ze Frank’s YoungMe/NowMe

30. User-Generated Content
From Ze Frank’s YoungMe/NowMe

31. User-Generated Content

32. User-Generated Content
•Issues:
•Who owns the content?
•How much do you take?
•Who is judging the content
(for a contest)?

33. User-Generated Content
Ownership Issues:

34. User-Generated Content
•How much do you take?
Reproduce
Public Derivative
Display Works
Copyright
Public
Distribute
Performance

35. User-Generated Content
•Who is Judging?
•Qualified judges
•Public vote?
•Clear criteria

36. Know the Forum

37. Know the Forum

38. Know the Forum
General Guidelines:
•No entry for those under 18.
•Entry must be free.
•Provide appropriate releases for
Facebook.
•Watch out for international
competitions.

39. Know the Forum

40. Know the Forum
You cannot: You can:
Notify winners Collect an email or
through Facebook, address through the
such as through third-party
Facebook application for the
messages, chat, or promotion.
posts on profiles or
Pages.

41. Know the Forum
You cannot: You can:
Condition entry in Use a third-party
the promotion upon application to
a user providing condition entry to the
content on promotion upon a
Facebook. user providing
content.

42. Know the Forum
You cannot: You can:
Instruct people to Instruct users to visit
sign up for a the third-party
Facebook account application to enter
before they enter the promotion.
the promotion.

44. Interacting with Brands

45. Interacting with Brands
• Clearance Trademark
Searches for Promotion Name
and Tag Lines
• Disclaimers for Branded Prizes
• Big Problems with Big
Promotions

46. Interacting with Brands
Likelihood of Consumer
Confusion?
(1) The strength of plaintiff’s mark;
(2) The similarity of the parties’ marks;
(3) The similarity of the parties’ products;
(4) The marketing channels for the parties’ products;
(5) The likelihood of expansion of the product lines;
(6) Actual consumer confusion between the two marks;
(7) The defendant’s intent in adopting its mark; and
(8) Likelihood of expansion of the product lines.

47. Interacting with Brands

48. Interacting with Brands
"The heart of the matter is that
Coors has unfairly used the
association's marks for its own
promotions and as prizes for
its promotions and has traded
on the good name of the
NCAA," he said.

49. Promotions
• Meet the Definitions
• Sweepstakes—Consideration Issues
• Contests—Judges and Criteria Issues
• Interaction with Consumers
• Know the rules for the type of promotion.
• Know the special rules of the forum.
• Be aware of what you are taking from
promotion participants if using UGC.
• Interaction with Other Brands—Be aware of
limitations when interacting with other brands.