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Influencing Influencers: Brand Protection and Risk Management

Influencer marketing has grown exponentially, revolutionising the way brands advertise products.  This social media marketing involves endorsement and product placement by those with social influence such as celebrities (think Kim Kardashian) and reality TV stars (think Love Island).  Influencers’ social media channels via Instagram, youtube, Twitter, Facebook, tiktok and the like are leveraged by brands to reach their followers and to encourage them to buy their products .

Getting influencer marketing right means that brands can successfully connect and interact globally with consumers by influencing their buying habits.  Whilst the potential benefits can be huge, brands can also be tainted or destroyed in a heartbeat as a result of careless social media posts or negative influencer publicity.  Businesses can no longer rely on the old adage of ‘no such thing as bad publicity’.

1. Do your due diligence

  • Is the influencer right for you?
  • What are their values, and do they align with you?
  • Check out their social media posts?  Does their style fit yours?
  • Look into their history – are there any skeletons in the closet that could come back to bite your brand?
  • Does the influencer act for any competing brands?  This can water down their endorsement of your product

2. Put an agreement in place

  • This is the commercial and legal basis for the campaign.  Detail exactly what is expected.  How many posts?  When?  What support and marketing materials will you provide?
  • Termination clauses will be essential if you need to distance yourself from them.
  • Remember confidentiality to protect commercially sensitive information.  Don’t give away your secrets! 
  • Be crystal clear on how your brand can be used.  Make sure they are on message.

3. Follow the regulations and guidance in place

  • Don’t expect the influencer to be an expert.  Any blowback will hit your brand.  Educate them if necessary.
  • Share with them ‘An Influencer’s Guide to making clear that ads are ads’ https://www.asa.org.uk/resource/influencers-guide.html
  • Paid for posts should be clearly marked as adverts.  Using #paidpartnership or #ad/#advert is good practice, but ‘sponsored’, ‘in association with’ or ‘thanks to [brand] for making this happen’ are not recommended. 
  • ‘Paid for’ doesn’t just mean money.  It can also cover product loans, hotel stays or trips.
  • The UK advertising codes have specific rules on adverts directed at children, greater scrutiny for medicines, medical devices, health-related products and beauty products, slimming products, food supplements, alcohol, homework and business opportunities. 
  • There is specific legislation for certain products which cannot be short-circuited through use of influencers.  Examples may be financial services, gambling, and age-restricted products.  You should already be aware of them, but have you told your influencer?

Bibbidi bobbidi boo – brands to the rescue


Household names, such as Topshop and Debenhams, have closed their doors forever.  The attraction to visit stores is vanishing, but e-commerce thrives.

Online retailers are transforming consumer experiences.  Consumers can shop at their convenience and, by utilising data to personalise the shopping experience, on-line businesses are building their consumer following in ways that retail businesses have struggled to do.  The try before you buy mentality may have given traditional stores an edge in the past but with the introduction of buy now pay later apps such as Klarna, on-line clothing rental and the popularity of e-marketplaces encouraging circular fashion; e‑commerce really is stealing the throne from the high street to become the new star. 

Recent retail acquisitions show there is still some magic left around retail fashion brands.  Fast fashion group Boohoo came to Debenhams’ rescue, but cherry picked the intellectual property.  Boohoo acquired Debenham’s website, 800 trade mark registrations and customer data.  Asos also swooped for Topshop, Topman and Miss Selfridge, paying £265 million for their brands and other IP. 

These knights in shining armour have emphasised the beauty and value retained in IP, meaning that even where the sparkle has left the building for a retail business, its brands can still go to the ball. 

To protect, enhance and make your brand irresistible as the retail industry evolves, consider carefully:

  • Have you got trade mark protection in place for your logo and brand name?  Trade mark registration will prevent third parties using your name and logo and protect your brand’s reputation.
  • Make sure your trade mark covers all your goods and services.
  • E-commerce extends your reach to new countries.  Do your trade mark registrations cover all these territories? 
  • Are you keeping up to date?  If you don’t use a trade mark in its registered form or pay the renewal fees on time, then you could lose it. 
  • Remain vigilant to anyone infringing your trade mark or any counterfeiting.  There are processes in place to help with this. 

Please get in touch if you have any questions around protecting your brand, trademarks, or taking your brand online. 

Should you gamble on online terms?

Andrew Green thought he had won big on a bet back in 2018 when the computer told him his winnings were £1.7m.  Betfred refused to pay out citing a computer error and forced him to play litigation roulette.  Backing their legal small print, Betfred picked a loser in Court and Mr Green finally collected his winnings.  Generously, Betfred apologised. 

Fortunately for Mr Green, Betfred’s very lengthy legal terms were described in the judgment as ‘unclear’, having ‘a number of infelicities of presentation’, ‘obscure’ – and not ‘fair’ and ‘transparent’ as required.

Betfred are not alone in having online terms that didn’t do as they had hoped and they got caught out.  Is the answer to wait for your terms to be challenged and reviewed by a Court through expensive, long-running litigation– or would you prefer them to be reviewed at a time and cost of your choosing by your lawyer to ensure they do precisely what you expect?  In our experience, gambling on your online terms going unchallenged isn’t worth a punt.

Please get in touch if you need any help.

No jab no job – it’s catchy but is it legal?

With the UK Covid vaccination programme speeding ahead like an express train, employers are inevitably starting to think about imposing a blanket requirement on their existing staff and new hires of ‘no jab, no job’. After all, sensible employers will want to take steps to ensure that their workplaces are safe for their staff and customers, and as the Covid vaccination is freely available this seems like an obvious and sensible approach.

What are the risks of this kind of policy?

The legal position is likely to be different for new staff as compared to existing staff, but both should be approached with caution and a ‘one size fits all’ rule should be avoided. Not everyone is able to receive the vaccine, for example people with severe allergies and pregnant women. Others may refuse to have it on religious grounds.  Many young people would also be unfairly prejudiced by a ‘no jab no job’ policy which is imposed now because they may not be offered the vaccine for many months to come.

Imposing this kind of blanket requirement on your existing workforce could create the risk of a number of different legal challenges. These include constructive dismissal and unfair dismissal if the employee has 2 years’ service or more, and breach of contract and discrimination regardless of length of service.

Any demand by an employer to know whether a member of staff has been vaccinated also raises questions about employee privacy and the handling of medical information which carries additional obligations for employers under data protection law.

Where new hires are concerned, there is nothing in law to stop employers from making the offer of employment conditional on vaccination and it is up to the individual to decide whether or not they want to take up an offer of employment on those terms.  However, businesses would do well to take on board that this kind of recruitment practice could be called out as discriminatory, especially if it’s not justifiable for sound objective reasons which are well evidenced and clearly linked to the job and the needs of the business.