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Contests, Sweepstakes and Raffles1

By Judith Silver, Esq., Coollawyer.com

Q: I'd like to have a contest on my Web site and give as the grand prize some type of sports memorabilia, such as an authentic autographed jersey bought directly from a professional sports team. Can I use the player's name and/or team in the marketing of the contest?

Answer:

Most states have "rights of publicity" laws, which mean you cannot use a person's name, voice or likeness in a commercial manner without his or her permission. In the case of a player, the name might also be a trademark if the player used it to sell and identify the source of products or services. The sports team's name would definitely be a trademark used to identify the products the team sells.

Formally, if you are going to use someone's name or trademark for promotion, you need to get his or her permission. Usually, this is done by requesting it through the permissions department of whatever company you are requesting permission from.

In this case, if you mention the item to be given away only as it is titled by the manufacturer and do not use the names or trademarks in any other way, I do not think you would have a problem. If you want to be certain, of course, ask permission or formally consult with an attorney in your state.

Promotions

When running an online or offline contest, sweepstakes or raffle, it's important to be aware of the regulations governing such offerings. Federal regulations on such games are enforced by the FTC, and state regulations on such games are enforced by state attorneys general.

Florida and New York require registration of games if the prize is valued at more than $5,000. Arizona, Rhode Island and Quebec also regulate games. Therefore, if you plan on heavily promoting your event, keep in mind that you need to consult with an attorney to ensure compliance with these regulations, or else risk investigation and/or penalties if any entrants file a complaint against you or the law enforcement agencies become aware of your activities.

In addition to regulations, the other important part of contests and sweepstakes is drafting of the rules involved. The rules are the contract that is agreed to between you and entrants upon their entry. Therefore, it is very important that it be drafted with care and in compliance with the law--especially if you expect to promote the game heavily and/or get many entries. Typically, writing all that fine print we often see is tricky enough that consultation with an attorney is the best plan.

To clarify the terminology, "sweepstakes" are random drawings from a pool of entries; each has different rules and different odds of winning. "Multiple drawing sweepstakes" are when prizes are given away at named intervals--for example, weekly or monthly. Finally, "second chance drawings" are those in which the sponsor holds an "instant-win" or a "match-and-win" promotion on their products or services, and then the entrant also has a second chance at winning a bigger drawing and prize as well.

"Contests" are games that require the entrant to have a skill of some sort to enter, and they are judged by a panel of judges and by objective criteria. And "raffles" are usually random drawings, with no skill involved, but which the entrant has to pay to enter. As payment is required to enter, raffles often fall under gambling regulations, so be sure to inquire about state regulations in such situations.

1 Readers are cautioned not to rely on this article as legal advice as it is
no substitution for a consultation with an attorney and an accountant in your state. Based
on jurisdiction and time, the law varies and changes.

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This site is run by Coollawyer Inc., a digital legal forms company. Judith Silver, author of the forms and this site, is located in Fort Lauderdale, FL, and is an attorney licensed in FL, CA, NY and TX .