Actress Sofia Vergara recently settled a lawsuit that she initiated against beauty company Venus Concept for the alleged unlawful use of her likeness in conjunction with promotional content appearing on television and social media. According to Vergara, the defendant created a false impression that she endorsed the brand.
As alleged in the compliant, in 2014 Vergara posted a selfie to her social media account during a “skin tightening” massage with the Venus Legacy machine. Vergara further alleged that Venus Concept subsequently used the photo during a television segment on an entertainment television show and circulated it throughout social media with a caption implying her endorsement of the treatment.
Vergara purports to be the highest-paid woman in television and sued the defendant and its affiliates for $15M, the amount she claims to be paid, per endorsement deal.
The settlement amount is undisclosed. However, the case illustrates the danger of using the name and likeness of a celebrity for promotional purposes, without consent.
In addition the very real risks associated with false endorsements, the FTC is cracking down on paid “influencer” campaigns that do not clearly and conspicuously disclose material connections with brands. The FTC’s Endorsement Guides provide that if there is a “material connection” between an endorser and an advertiser – in other words, a connection that might affect the weight or credibility that consumers give the endorsement – that connection should be clearly and conspicuously disclosed, unless it is already clear from the context of the communication.
A material connection could be a business or family relationship, monetary payment, or the gift of a free product. Importantly, the Endorsement Guides apply to both marketers and endorsers.
Contact an FTC advertising compliance and defense lawyer at Hinch Newman LLP to discuss the Commission’s social media endorsement guidance.
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Richard B. Newman is an Internet marketing compliance and regulatory defense attorney at Hinch Newman LLP focusing on advertising and digital media matters. His practice includes conducting legal compliance reviews of advertising campaigns, representing clients in investigations and enforcement actions brought by the Federal Trade Commission and state Attorneys General, commercial litigation, advising clients on promotional marketing programs, and negotiating and drafting legal agreements.
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