Marketing materials such as print advertising, banner advertising, web pages, product and service brochures, catalogs, yellow page listings, signs, phone system recording and email solicitations have important legal issues for any business, but especially for the startup business. Whereas an older company may have a historical reference from which to create marketing materials, new companies often make aggressive statements that challenge actual facts, such as “we are the best”, or “we are the leading . . .” when the company actually just started operations. When starting from scratch, new companies look at other existing companies to get samples for website content, brochures, advertising and marketing messages.

New businesses must carefully screen their public statements and representations for numerous potential legal issues – copyright infringement, false and misleading statements, defamation, copyrights, trademarks, warnings, foreign language rules, and product specific rules.

Each author of original work, such as a web page, article, graphic designs or advertisement, has a right to prevent others from copying the work. This right is called a “copyright”. A company should closely monitor their initial marketing materials to ensure that the text, graphics, layouts and designs do not copy the works of others. The law allows a fine line between permissible use of a work, also know as “fair use”, and improper infringing use. The company should keep its marketing materials as original as possible.

The company must exercise extreme care in ensuring that the statements and representations they make in their public statements are true and supported by facts. For example, if an advertisement says, "We are 30% cheaper than the next leading competitor”, the company must have reasonable facts to support the claim. If a competitor challenges the merit of the assertion, and the company is unable to support the claim, the company could face a claim for damages and a possible civil fine. The company should routinely review all statements contained in its marketing materials for accuracy and truthfulness.

Most legal jurisdictions make a distinction between a statement of fact - “can hold 200 lbs” - and statements of opinion - “the best food in town”. A statement of fact is generally a matter that one can prove or disapprove. A statement of opinion is something that has no right or wrong answer. A company has broader discretion to make a statement of opinion. Make sure that the company can support any factual statement in case another party challenges the factual claim.

Another important issue for new companies to consider is false or misleading statements about another person, organization, or the products or services of another organization. If the company makes a false or misleading statement about another, knows or has reason to know of its falseness, and the statement is made to others, the statement could subject the company to a claim for defamation, also know as slander (spoken words) or libel (written words). If successful, the third party could recover damages caused by the statement including possible punitive damages. Even if the statement is mostly true, the third party might have the ability to sustain a successful claim against the company. Any statements or opinions made by the company about another person, organization or the organizations' products and services should be closely scrutinized for accuracy. When the company is making a statement in its marketing materials, the company should ask - Is this true? Is this misleading? Can we support the statement by reasonable facts? It is better to refrain from making the statement if the company has any questions about the facts rather than to create a possible legal claim.

Another issue companies should consider is placing a copyright notice with each original marketing item. The copyright notice places readers on notice of the company’s claim of dominion over the text, graphic, design and artistic elements of a work and warns others to refrain from making improper copies of the work. The copyright notice appear in an easily visible location within the work such as at the bottom of a web page or advertisement. Although its not necessary to place a copyright notice on every page, the company should place the notice in as many places necessary to place a reader of notice of the copyright claim.

Another issue companies should consider is placing a trademark notice with each marketing item containing a trademark. The trademark notice places readers on notice of the company’s claim of dominion over the logo or name and warns others to refrain from improperly using the trademark for their own use. The trademark notice can appear in two ways. First, the notice can appear as a “TM”, if an unregistered trademark, or “Ò” symbol, if a registered trademark, along with the name or logo. For example, “Nike Ò” or “BusinessPowerLaw.com TM”. Second, the notice can appear at the bottom of the page containing the trademark and usually composed of a phrase such as “Dell is a registered trademark of Dell Computer Corporation”. Like the copyright notice, the trademark notice is intended to make the reader aware of the company’s claim of a trademark.

The law often requires companies to place warnings on their marketing materials, such as advertisements and packaging, warning users of certain known risks. The most common examples are hazardous materials, but warnings also include other products and services like certain electronic products and medical services. The company should research their specific product or service to ensure that the company identifies and complies with all applicable warnings and notices.

If company provides products in some foreign countries like Canada and France, the company packaging and product manuals will need to appear in multiple languages like French and English. Also, if a product is sold to a target market that is predominately non-English speaking like the Latin American communities in Florida, Texas or California, the company should consider adding the language to its marketing materials, especially for any required warnings and notices.

Some products and services have unique labeling and marketing requirements. For example, the Federal Communications Commission has numerous labeling rules many types of electronics and the Food and Drug Administration has numerous labeling rules for foods. The company should become fully aware of the regulatory requirements impacting the specific products and services provided by the company.

New companies are most vulnerable to these marketing challenges because of the difficulty in identifying all of the requirements and risks. As time passes, companies become acquainted with the specific rule impacting their industry. But until all of the legal issues fall into place, the startup company should remain conscious of the numerous issues potentially impacting their marketing communications.

An experienced attorney can provide significant help to the startup business by guiding the managers through the common pitfalls. Some companies request their attorney to review major marketing publications such as advertisements, product packaging, specification sheets, web pages, and other forms of marketing materials. Regardless of the option a company chooses, the company must stay focused on monitoring all of its marketing communications.