Why You Should Be Reviewing Your Company's Advertisements

By George Khoury, Esq. on August 23, 2017 | Last updated on March 21, 2019

As in-house counsel, the last thing you want is more work. But, if the company you work for advertises, it might be in your best, long term, interest to review all advertising before it gets pushed out to the public. Doing so could actually save you quite a bit more work, and save your company a lot of money.

Not only is there potential copyright infringement liability for copying ideas from popular culture, but regulatory compliance can lead to even costlier legal battles. As such, you might want to start giving your company's ads a quick look, and if what you see doesn't pass the smell test, it's probably worthwhile to dig deeper before letting an ad go public.

When push comes to shove, the amount of liability or exposure for using infringing material is much less significant than the potential public perception backlash. As many companies have learned the hard way, being on the wrong side of a controversy can quickly cut into a company's bottom line.

However, litigation can also be rather costly. For instance, in the current lawsuit against Nestle for using Atari's famous video game "Breakout" without permission in a commercial to market Nestle's Kit Kat candy bars, Atari is seeking treble damages and to disgorge Nestle's profits attributable to the candy commercial. A quick in-house review could have turned up the potential infringement that's being alleged, and rather than airing the commercial without permission, a limited license could have been sought, which likely would cost much less than the present litigation.

Regulatory Compliance

In addition to reviewing ads for potential copyright or trademark infringement, a quick in-house review can protect against running afoul of government regulations on advertising.

Generally, if your ad misleads consumers, or makes false or unsubstantiated claims, the FTC, or another government agency, could pursue an action against your company, which again, is likely much more work than watching a 30 or 60 second commercial and doing a couple minutes of research.

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