For two years now, Internet celebrity Matt Harding has been dancing around the world: rocking in Rwanda, shimmying in the Shetland Islands and blogging and mounting video on his Web site, “Where the Hell Is Matt?”
In 2006 both his persistence and his Web popularity convinced food maker Cadbury Adams USA that his far-flung footwork could benefit its newly launched gum brand, Stride, known for its tagline: “ridiculously long-lasting.” Cadbury also saw a good fit with the product’s target 18-to-24 demographic.
So Cadbury opted to underwrite Harding’s attempt to dance around the world in exchange for some low-key advertising within his online videos. That video has had 8 million hits since its launch in mid-2006; a 2007 follow-up has been seen 2 million times. Harding has been interviewed by numerous news outlets and credits Cadbury Adams and Stride in each interview. A new video is in the works.
But even marketing that’s designed not to look like marketing needs to take legal precautions. In this case, that included doing a thorough background check on Harding, Cadbury assistant general counsel Beth Kotran told an audience at the Promotional Marketing Association’s legal conference in Chicago in November.
It also meant avoiding links to his site from the Cadbury site to stave off any possible trademark infringement claims, either from the makers of the “Carmen Sandiego” video games or from the “Today Show,” which periodically sends host Matt Lauer into the field under a similar title. (In reality, both Matts found themselves in South Africa at the same time and danced together for a video that made it onto the NBC morning program.)
Kotran said the company tried to balance brand control with expressiveness and spontaneity. “It’s important that you not take away from what led you to viral marketing in the first place, which is the freedom this kind of content conveys,” she said. “When companies exert too much control, it becomes old-fashioned marketing.”
One important consideration in forward-to-a-friend campaigns is making sure that the e-mails comply with the Federal Trade Commission’s CAN-SPAM requirements.
Lisa Stancati, house counsel for ESPN.com, says ESPN.com was careful to scrub the list of submitted friend e-mails it its fall My Circle, My Picks college football promo against its in-house suppression list. The aim was to identify the e-mail messages clearly as ads and the sender as ESPN.com, and to offer an unsubscribe or opt-out mechanism.
ESPN.com incorporated all these provisions, even though it’s not clear that “forward to a friend” promotions such as this are governed by CAN-SPAM. Meanwhile, the FTC has announced plans to rule on such viral programs.
Finally Rich Taylor, counsel for Turner Entertainment Networks, outlined the legal safety nets erected for a multi-city guerrilla promotion around “Parco P.I.,” a reality show on Court TV in mid-2006.
Elements of the campaign included billboards from an enraged wife Emily to her unfaithful husband Steven, an online diary, a BMW spray-painted “Hope she was worth it,” and “Lost Dog” fliers with Steven’s picture posted around New York, Los Angeles and other major cities.
The most important legal precaution? Making sure the ad agency had adequate insurance to pay for any problems that could have arisen, Taylor said. “When you’re running this kind of campaign, the damages could possibly run into the millions. So you need an agency that can indemnify you for that amount if things go wrong.”
For example, he said, those BMWs were rented. “The agency guaranteed us the spray paint would come off,” Taylor said. “To our knowledge, it did.”
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