MISTAKE NO. 1. Taking Your Eye Off the Mark.
Too often, brand names and trademarks are misused in the quest for creativity.
Self Defense: In the end, it’s all in the name – the brand and trademark of the promoter. With the name and reputation of the promoter at stake, proper appreciation of the promoter’s trademarks is essential. To the suppliers, it’s mostly just money. To the promoter, it’s the franchise it has with the consumer. Without the brand, there is no promotion. Above all else, protect the brand, use it correctly, and have the promoter’s trademark counsel review all materials.
MISTAKE NO. 2. Succumbing to the Monty Hall Syndrome.
When it comes to hiring vendors,"Let’s make a deal" with the cheapest one is a costly approach, particularly with printers.
Self-Defense: Have written procedures and guidelines for the selection of vendors. Don’t always award jobs to the lowest bidder. Reputation and experience are the key elements to look for when selecting vendors, particularly printers, since they are a key player in a successful promotional execution. Whenever possible, go with vendors with whom you have a track record. Due diligence investigations of all suppliers is mandatory. Check references. If the supplier is new, get examples of prior jobs. Visit the plant to see if the equipment is sufficient. Inquire about the supplier’s other commitments and timetable to be certain your project is properly scheduled. Establish timetables and PANIC when they’re not met. Establish contingency plans if something goes awry. Get copies of certificates of insurance and, if necessary, get added as an additional insured. Have a representative present during the job or have access at any time during the contract period.
MISTAKE NO. 3. Not Assigning a Designated Quarterback.
The failure to coordinate advertising copy with promotional materials, especially official game rules, can create inconsistencies and cause legal exposure.
Self-Defense: Have proper procedures for checks and balances. Lack of coordination among the various parties participating in the development and execution of a promotion is a primary cause of disaster. You can have a promotion which is perfectly structured and produced, but if the advertising does not match or coordinate with the promotional materials, the risk of a problem rises significantly. Advertising, promotional materials, including official rules, and packaging must at all times be consistent. Someone has to be designated quarterback to coordinate all of the elements and players. Insist on legal sign-offs at every juncture.
MISTAKE NO. 4. You’re Not Cleared for Take-Off.
Do not assume that what is OK today will be fine by the time your promotion breaks. Circumstances, like personnel replacements and even the law, can change within a short period of time and may wreak havoc.
Self Defense: Anticipate changes. Build in ample lead time. Check periodically with legal counsel. Send them the various elements as they’re developed rather than waiting until the last moment. DO NOT release a promotion without a last phase sign-off by counsel. If there have been changes in personnel during program development, be sure to thoroughly brief those who are new and revisit timetables.
MISTAKE NO. 5. Too Much Work, Not Enough Play.
Failing to consider how games players might try to cheat or beat the system may result in fraud.
Self-Defense: Perhaps the biggest fear and most devastating error in any promotion is poor design that results in fraud. Fraud can severely damage a program and jeopardize the integrity of everyone involved. While it cannot be avoided given the propensity of some consumers to cheat, when the ability to cheat is the result of a poorly designed promotion, the negative impact on the brand is multiplied. With any concept, however ordinary you might think it is, play it out internally. Anticipate how a consumer might try to cheat or beat the game. Provide contingencies in your official rules. And when you think you’re sure, play it again and again. Never assume you’ve covered every contingency.
MISTAKE NO. 6. Changes After the Fact.
Once published and distributed, it is very difficult to change a promotion.
Self-Defense: Anticipate contingencies and the possibility of changes you may need to make when developing official rules, but tread lightly. If carefully worded, the official rules may allow a mid-course change. But consider whether you’re trying to overcome problems due to lack of participation or game design versus circumstances totally beyond your control. The former may be more difficult to justify.
MISTAKE NO. 7. Falling Into The "It’ll Go Away If We Leave It Alone" Trap.
Even a minor glitch in a promotion can turn into a complete nightmare if not treated seriously.
Self-Defense: The laws governing promotions are a virtual minefield. In addition to the federal laws, there are a myriad of laws in all fifty states that govern promotional activity. For example, some states have specific laws governing in pack promotions. Some states have laws governing specific types of representations in a promotion, and some states have special laws governing direct mail promotions. In addition to the sheer volume of law, the risks are enhanced by the fact that laws governing promotions are penal in nature. Therefore, the ramifications of making a mistake can be quite severe. Immediately upon identifying a problem, communicate it to legal for input.
MISTAKE NO. 8. Thinking You’re Just an Easy Target.
Do not treat an investigative inquiry informally or with arrogance just because you’re a big brand or major player. The largest recoveries and most damaging outcomes have been against the biggest advertisers.
Self-Defense: Regulators do not make investigative inquires cavalierly-they mean business. Any inquiry should be responded to immediately, preferably via a face to face meeting.
MISTAKE NO. 9. Directing Blame at Retail.
Depending upon retailer support for point of sale and local fulfillment can be costly.
Self-Defense: As a practical matter, a promoter has little control over what retailers do in the marketplace. Nonetheless, the promoter is liable for any mistakes retailers make. At the same time, it is virtually impossible to hold retailers responsible while at the same time maintaining relations with them. Therefore, whenever possible, packaging and other promotional and advertising support should anticipate retailer non-fulfillment.
MISTAKE NO. 10. Premature Mea Culpa’s.
Rushing to the media in the event of a disaster is foolish.
Self-Defense: Unfortunately, some promotional campaigns are best remembered for their disastrous outcome rather than their creativity or marketing success. When a promotion goes awry, its sponsor should directly communicate with consumers, confess the mistake and offer a solution. But remember, no matter how acute the problem, there is always time to think thoroughly and carefully. Bear in mind that a premature public reaction may actually increase your liability rather than limit it. So think first, react later.
THE BONUS MISTAKE ROUND
MISTAKE NO. 11. Vulnerability to Legal Indemnities.
Indemnities from otherwise asset-poor suppliers can create a false sense of security.
Self-Defense: An indemnity only provides a legal cause of action against the supplier, it does not immunize the promoter from consumer or regulatory liability. If the supplier has little or no assets, an indemnity is worthless. Be realistic. Accept the fact that not all suppliers can pay the freight in the event of a problem.
MISTAKE NO. 12. Overestimating What it Means to Have Insurance.
While insurance can protect a promoter from some financial exposure, it generally does not cover fines (against public policy) or protect a promoter from the ongoing burden of a consent decree or order.
Self Defense: Understand your legal risks and review all promotional materials carefully. Don’t think that your insurance policy will answer all your prayers if something goes wrong.
MISTAKE NO. 13. "*&#$!@ing All The Lawyers".
Believing you can eliminate the need for specialized counsel to review each phase of your program is a risk you cannot afford to take.
Self-Defense: Promotions, sweepstakes, games, and contests are highly specialized marketing vehicles. It is generally recommended that the legal advice of specialized counsel be obtained for all promotional programs. Be sure that whoever is conducting the legal review of your promotion has the requisite expertise in the area. Have an internal system in place to ensure that the promotion complies with the laws of all fifty states as well as federal law. Involve the lawyers early in your program planning. The discomfort they may cause is minimal compared to the pain that can be brought on by an attorney general or plaintiff’s lawyer.
MISTAKE NO. 14. Making One Mistake Too Many …
There’s no point here. I just didn’t want to end with thirteen.
You never know!