Column: Legal Traps of the Zero Moment of Truth

How marketers and agencies can protect themselves in the pursuit of an SEO advantage Here’s a sneak peek at our Aug. 13 issue. One of my most vivid memories from my first week at Procter & Gamble many years ago was being perplexed by the marketing lingo used by the brand managers. Not wanting to […]

How marketers and agencies can protect themselves in the pursuit of an SEO advantage

Here’s a sneak peek at our Aug. 13 issue.

One of my most vivid memories from my first week at Procter & Gamble many years ago was being perplexed by the marketing lingo used by the brand managers. Not wanting to seem like an out-of-touch lawyer, I nodded along with them for a few days, acting like I understood every word. I had to abandon that approach after one week when the use of one term became so pervasive that I was forced to admit that I had no idea what was being discussed. That acronym was “FMOT” and understanding its use was my first foray into the wonderful world of advertising strategy.

As most readers of this magazine know, FMOT refers to the “First Moment of Truth” in advertising and specifically to the point in time when the consumer is standing at the store shelf making the decision to purchase one brand over another. By the FMOT moment, the consumer would have already encountered brand messaging to help build positive brand awareness. At the shelf itself, the package design, shelf placement and in-store advertising could be used to help seal the deal and lead to that critical trial purchase.

The Second Moment of Truth (SMOT) follows success at the FMOT and refers to the product experience itself. If the product performs well and lives up to the expectations set by the brand promise, the consumer would likely decide to re-purchase and brand loyalty would have been established.

Interestingly, by the time the terms FMOT and SMOT began creeping into marketing parlance in the mid-2000s, the entire construct was becoming dated. The emergence of the internet as the primary source of information for consumers has led to a new Moment of Truth that is fast becoming the touchstone for advertisers. The Zero Moment of Truth (ZMOT) recognizes that consumers are actively investigating and making purchase decisions long before they visit the store. Consumers will research, compare and bargain hunt long before FMOT, so a brand not only needs to win on the shelf, but it needs to compete at ZMOT to remain in the game.

This shift to ZMOT raises a number of legal considerations for your team.

Optimization is a key ingredient to winning at ZMOT. Your campaign and its key elements must rank high when searched through Google or any other search engine. Not only should your product be found easily, but creative elements used in the advertising should also be optimized and leveraged in multiple media including online, mobile and social channels. Was there a mascot, celebrity or one-hit-wonder song from the ’80s used in TV commercials that might lead to searches? The design of your campaign should consider these elements to draw people in.

Accordingly, be careful about using competitive marks or branding elements that could be confusing at the search stage or that might violate releases and agreements with third parties. For example, you should be sure that contracts for music or talent adequately contemplate optimizing the online presence of the campaign.

Comparison is another central element of ZMOT. Whether through product-comparison websites, how-to videos or online consumer reviews, consumers are likely checking out your product alongside its main competitors. Therefore, you need to be aware of what is being said about your brand online. Correct inaccuracies where necessary, but be careful about being too restrictive or interventionist about comments or negative reviews. Consumers will be suspicious of a sanitized online presence. But be sure that your team never engages in posting artificial reviews or comments for your products or for your competitors. Tactics like these not only potentially violate misleading advertising laws, but have also caused significant embarrassment and brand erosion for others.

Finally, recognize that ZMOT is already mobile. Consumers are spending time at the ZMOT whenever and wherever their interest is piqued. Have your online presence optimized for mobile devices and be conscious of the challenge of crafting accurate advertising within the confines of social media. Where do you place a disclaimer on your tweet? Think big when going small. After all, 140 characters may seem restrictive, but it is still enough rope to hang your brand if not executed properly.

Erin O’Toole (@MarketingROE) is a lawyer with the national firm Heenan Blaikie LLP. This column is not legal advice nor a substitute for legal counsel.

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