Kelley Drye has one of the leading promotions law practices in the country. Our attorneys regularly counsel clients on all aspects of structuring and running a variety of promotions, including sweepstakes and contests, gift cards and other incentives, charitable promotions, and sponsorships and other promotional agreements.
Sweepstakes and Contests
From the moment an idea is conceived until after prizes are awarded, we help our clients ensure their promotions meet their business goals in way that complies with applicable laws and offers as much protection as possible. In recent years, our team has worked on some of the largest sweepstakes and contests in the United States. For example:
- We assisted a leading quick-service restaurant in structuring and advertising an instant win game offered in conjunction with the release of a major motion picture. As part of the project, we assisted in drafting the official rules, reviewed all advertisements, helped obtain rights to movie content, and negotiated agreements with various prize providers.
- We assisted various clients with contest involving consumer-generated content, including contests where consumers were invited to create commercials, develop software, and even design sneakers. We drafted rules for the promotions, helped protect our clients from problematic content, and secured rights to the winning submissions.
- We assisted various client in designing sweepstakes that allow consumers to enter by sending text messages via their mobile phones. We helped these clients structure the promotions in such a way as to avoid the lawsuits that have recently plagued other companies that have offered text-to-win sweepstakes.
In addition to assisting clients with promotions in all 50 states, we work closely with a network of lawyers across the world to enable our clients to run international promotions. We have helped clients clear various types of sweepstakes, instant win games, pay-to-play skill contests, and other promotions in five continents.
Gift Cards and other Incentives
As more companies have started to offer gift cards, more states have started to regulate gift card programs. Our team has helped clients structure their gift card programs in a manner that complies with this growing patchwork of state regulations. For example:
- We have assisted various companies, ranging from major retailers to quick-service restaurants, in complying with consumer protection statutes, including statutes that regulate expiration dates, dormancy fees, cash redemption provisions, and disclosure requirements.
- We have counseled our clients about their obligations under escheat laws and have assisted many of them in setting up their gift card programs in a manner that minimizes their obligations under these laws.
- We have negotiated various gift card agreements, including agreements with financial institutions, gift card distributors, and data processors.
In addition to our extensive work in the area of gift cards, we also assist our clients in structuring a variety of other incentives, including coupons, rebates, and loyalty programs.
Charitable Promotions
Our team has helped various for-profit companies run promotions in which a portion of proceeds derived from sales are donated to a charity. In recent years, our team has been involved with a number of high-profile charitable promotions. For example:
- We advised Converse and Dell regarding their roles in promotions for the (RED) Campaign, in which a portion of proceeds from the sale of certain products are donated to The Global Fund to Fight AIDS, Tuberculosis and Malaria.
- We regularly counsel NIKE regarding its role in charitable promotions, including the sale of LIVESTRONG bracelets and specially-marked clothing to benefit the Lance Armstrong Foundation.
- We assisted 3M in a promotion to benefit The Susan G. Komen Breast Cancer Foundation.
As part of our involvement in these promotions, we counseled clients in how the promotions could be structured and advertised, negotiated agreements with the charitable organizations involved in the promotions, and assisted our clients in registering the promotions in various states. With the help of our international network of lawyers, we have even assisted clients in clearing charitable promotions across three continents.
Sponsorships and Other Agreements
As part of our Promotions Practice, our team regularly drafts and negotiates sponsorship, promotion, endorsement, talent, and related agreements for our clients. Our attorneys’ comprehensive knowledge and expertise of the interplay between advertising, intellectual property, and business issues allows us to represent successfully advertisers and advertising and promotional agencies. For example:
- We assisted clients in negotiating sponsorship agreements with athletes, teams, and leagues. Our experience encompasses all major sports including baseball, basketball, hockey, soccer, and even professional bull riding. In addition, we have helped our clients secure endorsement agreements with individual athletes.
- We assisted a client during a six-month review of its creative and media advertising agency relationships by helping to review more than a dozen proposals from leading agencies, participating in negotiations with the successful bidders, and drafting the new creative and media agency agreements, which contained cutting-edge performance-based compensation and review provisions.
- We have drafted and negotiated dozens of promotions agreements for companies participating in all parts of the promotions process, including agreements on behalf of clients that were sweepstakes sponsors, prize providers, and promotions agencies.
Many of our successes have involved the co-branding and joint marketing of enhanced services that manufacturers and service providers want to provide to their subscribers, customers, or partners. In addition to typical, co-branded or private label transaction issues, (i.e., license scope, warranties, product quality control, revenue allocation, etc.), enhanced service programs present novel challenges for manufacturers and service providers, especially regarding customer care and assistance, service level guarantees, indemnification for service failures and disruptions, and rights to derivative works and developments.
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