I think that is impossible for us attorneys to know without seeing the actual site and the wording you use and how the banner looks and is positioned. I think the default is probably that it is an advertisement rather than an endorsement unless you make it seem like an endorsement. The fact that you are here asking tells me attorney eyeballs are needed on the site before that attorney makes an opinion. I think you could tip the scales rather easily with a common step of having a markup page that users must view and click that they understand during registration on your site prior to clicking on TOU agreement. Your TOU would also say the ad is just an ad and that the user understands and agrees with that. Such a markup page would take the wind out of the sails of any user claiming to have been deceived by what they observed and indicated they understood and thus visually confirm the TOU disclaimer. See what you got for free by coming to Avvo! Mark a best answer and indicate helpful answers so future readers will get the same help. And, pick one of the attorneys here to assist you with other issues. Here is a guide I wrote to help you spot some of the many issues often missed in setting up a website.
I am not your lawyer and you are not my client. Free advice here is without recourse and any reliance thereupon is at your sole risk. This is done without compensation as a free public service. I am licensed in IL, MO, TX and I am a Reg. Pat. Atty. so advice in any other jurisdiction is strictly general advice and should be confirmed with an attorney licensed in that jurisdiction.
I agree with Attorney Burdick that you really don't provide enough detail to enable an attorney to provide you with a conclusive answer to your question. Everything depends upon the presentation - do you plan to set the ad apart in a prominent and unambiguous way - making it clear it is separate and apart from your blog post? Will you label the as an advertisement in a clear way?
I think your issues can be easily managed, but that to do so you should meet with and discuss your plans with a local internet / intellectual property law attorney. S/he will help you develop a protocol and template that can follow in order to avoid the appearance of providing an endorsement.
You need to read the very understandable guides and other information published by the Federal Trade Commission on this very topic. Start with the Revised Endorsement Guide, then the follow-up FAQ's to that Guide, then the Dot Com Disclosure Guide and then a tutorial written by an group expert in the field on blogger's rights [all linked to below]. Then speak with your own intellectual property attorney.
This is your third question on how to lawfully run your business and website. You cannot engage in this business properly without having your own attorney assist you. Good luck.
The above is general information ONLY and is not legal advice, does not form an attorney-client relationship, and should NOT be relied upon to take or refrain from taking any action. I am not your attorney. You should seek the advice of competent counsel before taking any action related to your inquiry.
Are You Planning on Opening a New Blog Website?
There is much you need to know as you begin your new business. I suggest you do not attempt to write your own legal policies. This is not where your training and background lie, and though you are probably as smart as an attorney, you do not have their experience.
Below is a checklist for legal issues I use for new e-commerce clients.
1. Business entity - Are you going to be a C corp, an LLC or a sole proprietorship?
2. Terms of Service - This is your contract with your visitors and is the most important item for any e-commerce site. A little work here brings big dividends in the future.
4. FTC guidlines - The FTC has been regulating business advertising for almost a century. All of their advertising guidlines apply to e-commerce sites.
5. Domain Name issues? Is your name available. Can you create a Trademark?
6. Trademark - Do you have a brand name free from conflict? Should you start with just common law rights? Should you register the mark, and when?
7. Copyright - If it is on the web, it already belongs to somebody. Did you buy a license for the images you are using? Do you have a DMCA notice on your web site?
8. Do you need a DMCA policy?
9. Web Site security issues?
10. Do you need and have an EIN? You can get that for free.
11. Do you have employees? - If so you need written policies regarding their authority and use of the internet.
12. Do you know the difference between a "browser wrap" and a "click wrap" and which do you need?
When I discuss this list with clients other issues arise. Finally, I always discuss with my clients their need for good accounting services. An accountant's advice as you start up can save you many dollars in tax that you might not save if you wait to speak to an accountant until your first tax return is due.
I hope this list will give you pause to think about those issues for which you might need to seek professional advice.
You may want to discuss your situation with a lawyer in more detail. Most lawyers on Avvo, including myself, offer a free phone consultation.
Andrew M. Jaffe
Attorney at Law
Practice Limited to E-Commerce and Internet Law
This post is provided for general informational purposes only and is not intended to be legal advice specific to you. This general information is not a substitute for the advice of an attorney in your jurisdiction. The attorney client relationship is not established by this post.