Disclaimer: Reading legal articles on the Internet and applying it to your situation would be silly. What follows isn't legal advice, it's general legal information. If you aren't an attorney, consult one before trying this.

tl;dr Reviewing advertising and marketing materials is often straightforward buuuuttttt it can be easy to overlook legal issues. One solution: A checklist. This post provides a checklist that you can give to your marketing team or use yourself.

The Checklist

[ ] IP: Do you have the right to use the text, photos, drawing, music, and video (either because it was created internally or you have a license)?

[ ] People: If you’re using names and pictures of people, did you get their written permission?

[ ] Third-party trademarks and logos: If you’re referring to another business name, logo, or product, are you doing it in the right way?

[ ] Your own trademarks: If you’re using your own trademarks, are you doing so properly?

[ ] Truth: Are all the statements you’re making true and supported by evidence?

[ ] Privacy: Have you ensured that you aren’t disclosing personal or confidential information?

[ ] Catch-all: Is there anything else out of the ordinary?

In More Detail

IP: Do you have the right to use the text, photos, drawings, music, and video (either because it was created internally or you have a license)?

You must have the right to use any images or videos you use. If an employee or agent created or captured the text/image/video (including images and music in a video), then you are OK provided it isn’t based on a famous work. If not, you need to have rights to use it via a written agreement.

People: If you’re using names and pictures of people, did you get their written permission?

You can't use someone's name or likeness without their permission. So, using or referring to names and likenesses (e.g., celebrity name-drops, pictures of people) can be tricky.

Because random people can make publicity rights claims against you for using their name, it's better to use real names of people who've given you permission than to make up names.

If you are using the name and likeness of an employee, your IP rights agreement with the employee may give you the rights you need but it may not. If not, get something in writing (an email may be sufficient) obtaining permission.

If you receive signed releases or email consents, store them somewhere where you can find them later!

Third-party trademarks and logos: If you’re referring to another business name, logo, or product, are you doing it in the right way?

You can reference or display another business’s name, logo, or product only if:

• You have the contractual right to for the specific use (for example, from a release, or from the developer terms and conditions); or
• Absent a contractual right, it doesn’t imply affiliation, sponsorship, or endorsement.

For example, a factual statement regarding integration partners would not imply affiliation, sponsorship, or endorsement

A quick note about screenshots and images of third party products: You can generally use images of third-party products to depict features/services (for example, a web or mobile experience), as long as we are not implying endorsement or affiliation, but some third parties (Apple, Google) have specific guidelines for portraying images of their products. You should comply with those.

Your own trademarks: Are you referencing your own trademarks properly?

To avoid risking the loss of your trademark rights, it is important to not use your trademark as a verb or a noun.

Truth: Have you checked for false or misleading statements or claims?

The statements you make need to be true and complete, not false and misleading. That sounds easy, but there are a bunch of ways for a statement to be untrue:

• It can be flat out false (e.g., “Our product has the most functionality”);
• it can be misleading (for example, offering a $100 discount but failing to specify that it applies to Canadian customers only); or
• it can be unsubstantiated (for example, “more uptime than any competitor”).

In particular, look out for superlatives (e.g., never, always, largest, fastest, instant, safest) and ensure that, if you're using metrics, they are accurate and substantiated.

Privacy: Have you ensured that you aren’t disclosing personal or confidential information?

If you're disclosing someone's name or location or IP address, that may be a mistake. Don't inadvertently dox someone.

Catch-all: Is there anything else out of the ordinary?

Be careful about things like:

• a contest or sweepstakes (sweet mother of all that is holy and good in the world, try to stay away from sweepstakes and contests--sweepstakes and contests are heavily regulated and each state does it a little differently);
• a revelation of a new tagline, product name, or product logo;
• a revelation of a new product or feature (your patent lawyer may want a heads up before you do that);
• social influencer programs;
• referral programs where the payment or prize goes to individuals;
• targeting children;
• mentions of big events like the Oscars, Super Bowl, Olympics, or World Cup (those groups are incredibly litigious); and
• anything else that makes you think "I wonder if this is OK?"

If one of these things is included, call an expert.