Create, Consult, Control
News & commentary on intellectual property issues.
Nov092009 | Steve O'Donnell
ReTweet for a chance to win and a chance for me to break a law
A typical Facebook or Twitter promotion is something like “become a fan (follow) and post this on your wall (ReTweet) for a chance to win something.” I get such requests almost daily and usually enter. Who doesn't like free stuff? If you're marketing your business online you've probably considered these sorts of promotions since they increase your pool of potential customers, but are they legal?
The answer to that question is far from clear. Such giveaways are dictated by state law, which means to be totally in the clear, you need to comply with the promotion laws of the whole US.
Although the language is often abused, most promotions fall into one of three categories: contests, sweepstakes and lotteries.
Contests require some skill or talent. Examples are American Idol and the bikini contest at your local bar; Sweepstakes are giveaways open to the public; lotteries require participants to provide some consideration to be entered (consideration is the lawyer term for providing some benefit to the other party, which itself, sounds like lawyer-speak, sorry). Generally, lotteries are highly regulated, while sweepstakes and contests are less regulated.
The possible problem with a “ReTweet” or “become a fan” promotion is that they require the participant to do something that benefits the promotor. Although it's not quite as obvious as requiring the purchase of a lottery ticket, it's still giving the promotor free advertising, which may make the promotion an illegal lottery.
Depending on how you look at it, the reason that lotteries are illegal are either protective of the state or protective of the people. On one hand, the state doesn't want to compete with other lotteries, on the other, the state is protecting its citizens from scam lotteries.
I know what you're thinking: “But Steve, Taco Bell and my church both run lotteries, why can't I?” In the case of a Taco Bell or similar promotion, they're really running a sweepstakes. Take a look at the official rules, there is always a way of obtaining a game piece without having to buy something. Since entry into those promotions is not based on the contestant providing consideration it's really a sweepstakes. Churches and other charitable organizations can often be cleared by the state to run a raffle.
In theory, a simple “ReTweet for a chance to win” post can subject you the the laws of all states, and possibly to the laws of all the countries of the world, which is probably a much deeper hole than you thought you were digging. Pragmatically speaking, the consideration given by becoming a fan of a Facebook page or ReTweeting a post is so small that it would take a very bored and motivated Attorney General to bring a case against you, but I know I wouldn't want to risk fighting a case in an out of state court if I could avoid it, and I imagine you don't want to either.
There are ways of lessening your possible exposure. Phrasing your promotion so it is either a sweepstakes or a contest is probably the best. Ways of doing that might include entering all fans (followers) that respond to a request for entries in a giveaway and asking them to please post on their wall (ReTweet), or choosing the winner based on the best slogan submission. You should also consider limiting the geographical reach of the promotion to lessen your exposure. These suggestions may not completely keep you in the clear, but they, or similar, should lessen your chance of getting into trouble.
Promotions of these types are very new and I'm not aware of any laws that specifically address them. In that case, being overly conservative is the best way of avoiding any problems.
This post, of course, does not address issues that exist with either the Facebook or Twitter terms of service, which may open up other cans of worms.
If you're running, or thinking of running an internet promotion, it's in your best interest to work with an attorney to make sure it's set up in a way to lessen your possible exposure.
Picture used under to the Creative Commons license.
Nov032009 | Steve O'Donnell
What exactly does *this* patent cover?
You might think that it would be easy to tell exactly what a patent covers, but that is far from the case.
Patents can be divided into a number of sections, but I think the most meaningful division is between “claims” and “everything else.” The claims are found at the end of a patent (or at the beginning, depending on where you’re viewing them online) and start with something like “we claim. . .” and then follow with one or more numbered paragraphs. A patent only covers what is claimed, but figuring out what is claimed can be a task in itself.
The rest of the patent is a support system for the claims. If a claim says something like “means for attachment of a first edge of a first panel and a second edge of a second panel” then somewhere in the rest of the patent has to be some explanation of what that means; claims typically make no sense on their own. That was the first draft of a clause claiming a zipper, and probably didn’t tell you much of anything on its own. If legalese is the confusing ramble that often flows from a lawyer, then patent claims can be some sort of steroid and espresso fueled legalese
If you have any question about whether something is patented or if you’re infringing a patent you really need to have a patent attorney analyze the patent and draft an opinion letter for you. Unfortunately, you can never be 100% sure what a patent covers until a court tells you what the terms mean, but an opinion letter from your attorney can go a long way in keeping you in the clear.
Oct312009 | Steve O'Donnell
Architecture Copyrights
There are two distinct types of copyright protection that architects should obtain for their designs to protect their intellectual property.
The first is copyright in the blueprints themselves under 17 U.S.C. §102(a)(5). This registration will protect the plans, but curiously, won’t prevent someone from taking the plans and using them to construct a building.
The second route is to register the plans as an “architectural work” under 17 U.S.C. §102(a)(8). This can prevent the construction of a building but likely won’t prevent a client from altering the building.
Registration of the copyrights is rather inexpensive, especially when compared to the benefits they confer. There is no reason why an architect should choose to not secure their copyrights.
Of course, an architect is free to contract for additional rights or transfer any rights to a client if there is some need for that.
Feel free to Contact me to schedule a review of your contracts and intellectual property protection needs.
Photo licensed under the Creative Commons Attribution-Share Alike 2.0 Generic license.
Oct282009 | Steve O'Donnell
Importance of a Registered Trademark to an Overall Branding Strategy
Do you need to protect your business identity with a registered trademark? That depends on how angry you’ll be if someone else starts using your business name or identifying logos.
For example, imagine that I started selling cans of my Open Source Chili under the brand name “Steve’s Chili” at a local market, and further imagine that the labels on the cans had a unique graphic that made them stand out from other canned foods. How angry am I going to be if I find out that someone else has started selling a “Steve’s Chili” in another state? Will I be angrier if I also discover that they’re using a similar design on their labels? What if I was using a more unique name, would I be angrier if someone else started using it?
What if instead of selling cans of chili I open a restaurant. In that case, I might not care at all if someone across the country uses the same name for their restaurant, but I might care if someone copies the unique graphic I had designed for my signage.
If I was the first to use “Steve’s Chili” as a trademark, even if I don’t register it, I will likely have superior rights to someone else using the same mark, at least in the area where I’m doing business. If I have no plans to grow beyond where I’m already established I might not care if someone a few states away uses the same mark and I might not bother to register a trademark.
A good test is to imagine that a year after you open, someone two states over starts a similar business with the same or similar name and using the same or similar graphics. If that makes a vein pop out of your forehead, you should contact a trademark attorney. If that possibility doesn’t really matter to you or if you’re not doing business across state lines, maybe you don’t need a federal trademark, in which case you should still contact a trademark attorney to discuss the possibility of a state trademark. Even without registration you have certain rights to your trademark, but registration has a number of important advantages you should talk over with your attorney.
If you're not willing to protect your brand, there isn't much point of trying to build one.
Oct232009 | Steve O'Donnell
Benefits of a Registered Trademark
It’s often said that trademark rights come from the use of the trademark, and while that is true, there are strong incentives to registering your trademark.
If a trademark is registered there is constructive notice nationwide of the existence of the mark, meaning that if someone starts using the same or confusingly similar mark, they won’t be able to claim ignorance of the registration. It also gives the owner priority across the nation to use the mark, so even if the owner is only using the mark in one area of the country, the owner’s rights extend nationwide so the business can expand without concern that the mark is already in use somewhere else.
It’s evidence of ownership of the mark. Issues of ownership often come up when businesses come apart and a departing party claims ownership of a mark. Another area where this comes up is bands. The names “Pink Floyd” and “The Talking Heads” have been the subject of such problems when ownership of the name isn’t entirely clear.
The owner of a registered mark is able to bring an infringement action in federal court and may be awarded triple damages, profits, costs and attorney fees.
If a mark is registered in the US, that registration can be used as the basis for obtaining registration in other countries.
The registration may be filed with US Customs to prevent the importation of goods bearing an infringing mark.
A trademark is an intangible asset of the business’ balance sheet and can be sold, transferred, etc, like other property.
Once a trademark is registered, the ® symbol can be used to indicate to others that the mark is registered and that the owner will defend it.
Five years after registration the mark may be made incontestable, meaning that certainly aspects of the registration cannot be attacked by third parties. Generally, an incontestable trademark is immune to attacks that it is invalid or should not have been registered. Incontestability is not absolute, the mark can still be at risk if fraud was used to obtain it or if it has become a generic term.
One advantage that many don’t consider is that by registering a trademark you’ve essentially cleared it, meaning that the trademark office has looked at similar marks and determined that your mark is not deceptively close to someone else’s. It is still possible that a court might disagree, but obtaining registration is as certain as you can get that you won’t have any problems going forward with your business name or mark.
Ideally, you should speak with a trademark attorney when deciding on the name for your business so that he can check if there is already a business using that name. In reality, that doesn’t usually happen unless the principals of the new business have been burned by a trademark problem in the past. Similarly, you should have your trademark attorney check before you begin using a logo or other way of marking your business identity. Failing to do so can be an expensive problem to fix.
Oct032009 | Steve O'Donnell
Hey dude, don't fear TI. Take a calculator and make it better
For the geeks that came before me, it was the slide rule; for those that came after me it's probably a Linux tablet; but for those around my age, it was the graphing calculator (specifically the TI-81). It was something you could carry like a badge of your geekiness, warning others that they'd probably work for you at some point. Now, Texas Instruments is threatening the programmable calculator geek elite in what appears to be a rather poorly thought out legal and business strategy.
What does a true fan of, well, anything, do with the subject of their fandom? They deconstruct and reconstruct it. Think of it, if you really love music, you make your own, if you really love a show you might write fan fiction or analyze the canon to death. If you really love technology, you tweak it and make it better. So it's no surprise that a group of programmable calculator enthusiasts have taken it on themselves to modify their calculators.
Of course, nothing worth doing is easy, and installing a homebrew OS on a calculator is worth doing, so of course, there have to be hoops. The main hoop is that the Texas Instruments calculators check the signature of software before allowing it to load on the hardware. In order to find the private keys that could be used to unlock the hardware, the public keys were analyzed via distributed computing. Once the key was discovered, the hardware could be unlocked and calculator owners would install their own operating systems.
One might think this would make TI happy. After all, between notebooks, netbooks, tablets and iPhones, I'd think that the market for programmable calculators was not as big as it once was. Of course no one asked my opinion.
TI has instead decided to fire off cease and desist letters under the theory that the anti-circumvention provisions of the Digital Millennium Copyright Act give TI the power to force the suppression of the keys. I think TI, or more appropriately, TI's attorneys are reading even more into the DMCA than there already is and there are some problems that TI would encounter if they tried to assert their claims in court.
First, the DMCA, among other things, prohibits circumvention of technological measures put in place to prevent copying files as well as the distribution of circumvention tools. But, the operating system and boot code on the calculators is not encrypted, so no circumvention is needed to get to it. Second, the DMCA explicitly allows people to reverse engineer code in order to achieve interoperability with other software, such as a homebrew OS. Lastly, there needs to be some nexus between the actions and copyright infringement in order for the DMCA to attach. In this instance, the calculator homebrewers weren't distributing TI's copyrighted code, but were installing their own operating system on their own calculators, so there is no copyright infringement.
Why is TI challenging these homebrewers? I can't say. I don't understand it. I would think that the possibility of selling some more calculators would be more attractive than threatening their remaining customers. Now, I must admit, even though I don't think TI would have much chance in court, that doesn't make it so; the courts have not (yet) ceded ultimate authority to me. But even if TI does have the legal ability to shut down homebrewers I fail to see how they can benefit from threatening their customers.
Photo licensed under the Creative Commons Attribution ShareAlike 3.0 License.
Sorry about the post title.
Sep012009 | Steve O'Donnell
Twitter Trademark Fail Whale
As reported across the tech and trademark newsites, the same day that Twitter announced to the world that it was seeking trademark protection for the term “tweet” they received news that the US Patent and Trademark Office had tentatively shot down their application. So what happened and what can be done to prevent it from happening to your business?
At some point in time, Twitter users began using the term “Tweets” to refer to individual posts and “ReTweets” to refer to forwarded messages. Twitter has a large number of devotees, and many of them have started their own Twitter-related services. Since “Tweet” has become associated, almost synonymous, with Twitter, it was obvious that some of these services would latch onto the term “Tweet.”
At least three of these Twitter-related services: TweetMarks, Cotweet, and Tweetphoto are a little faster on the draw than Twitter and began the trademark registration procedure before Twitter. As the Patent and Trademark Office noted in its response to Twitter, those applications may prevent Twitter from registering “Tweet” because of the possibility of a consumer confusion.
Now, the process isn't over yet, Twitter can try to convince the Patent and Trademark Office that there won't be consumer confusion or they can approach the other companies and try to strike a deal that will let everyone use the term “Tweet,” how well that will go is anyone's guess. The fact remains that Twitter sat on their hands while others trademarked “Tweet” out from under them and now it may be too late.
Remember, the early bird gets the worm. If something like a word, graphic, or slogan becomes attached to your business, take the measures necessary to protect it as soon as possible.
3D Fail Whale used under the Creative Commons Attribution-Noncommercial-Share Alike 2.0 Generic license.
Jul302009 | Steve O'Donnell
Scary podcast patent not that scary
Last Tuesday the patent office issued a patent to Volomedia for a “Method for providing episodic media content.” By Wednesday, the tubes were filled with commentary ranging from “the patent system is broken” to “Oh nos [sic], they're going to sue podcasters.” Most of those comments mentioned Adam Curry in some way.
I can't fault the media (I'm including bloggers of all ilk in that term) for getting up in arms. Patents are rather specialized and there is a reason why registration with the US Patent Office requires a separate bar exam. Analyzing a patent to determine exactly what it covers can take days or weeks, and then you're still not exactly sure what it means until a Judge issues a claim construction.
First things first, Volomedia's patent does not cover making, uploading, downloading or listening to podcasts. It covers a method to distributing them, so the iTunes store or Podcast Alley would be possible targets if Volomedia tried to enforce their patent against a current distributor, not a typical podcaster or a listener. Whether or not they would try to enforce against someone, or what would happen if they did is anyone's guess.
It might not make economic sense to go after a provider. Even if Volomedia won at a Motion to Dismiss, what would they get? Most podcasts are distributed for free, and the damages period would begin when the patent was first in force (since Tuesday). So, right at this minute, damages are probably pretty small. Volomedia could instead ask for a reasonable royalty, but because of the free nature of most podcasts, this probably also wouldn't be a huge award. Of course, maybe they would want to shut down all current podcast services and be the exclusive provider of all that podcast content, one can never guess exactly what lurks in a business' heart.
There are some questions about whether the current most common content dissemination schemes infringe the patent, but even if they do, they can probably be quickly redesigned to avoid the patent.
The patent contains nine claims, 8 eight of those are dependent, meaning they build off the single independent claim. I'm going to give a cursory look at part of claim 1 to point out what I think might be a couple issues for Volomedia if they would try to enforce this patent against something like Podcast Alley. This is in no way even approaching what would be required for a claim construction and shouldn't be relied on my anyone for anything. This is just for fun. Yea! Grab the patent and play along!
The first claim, which I've roughly diagrammed here reads:
1. A method for providing episodic media,
(a)the method comprising:
i.providing a user with access to a channel dedicated to episodic media,
A.wherein the episodic media provided over the channel is pre-defined into one or more episodes by a remote publisher of the episodic media;
ii.receiving a subscription request to the channel dedicated to the episodic media from the user;
iii.automatically downloading updated episodic media associated with the channel dedicated to the episodic media to a computing device associated with the user in accordance with the subscription request upon availability of the updated episodic media,
A.the automatic download occurring without further user interaction;
iv.and providing the user with:
A.an indication of a maximum available channel depth,
B.the channel depth indicating a size of episodic media yet to be downloaded from the channel and
C.size of episodic media already downloaded from the channel,
the channel depth being specified in playtime or storage resources, and
D.the ability to modify the channel depth by deleting selected episodic media content, thereby overriding the previously configured channel depth.
Ok, that's a mouthful. The first thing that one should understand is that to infringe a claim, one has to infringe all the elements of that claim. In other words, a claim to a “four-door, red car” has three elements, “four-door,” “red” and “car.” If you avoid any of of those elements, you don't infringe the claim. The second thing to realize is that just as there are a number of shades of red, each word in a patent claim is open to interpretation. That interpretation, or claim construction, during litigation is going to define how the infringement analysis will go.
The first questions that would need to be nailed down are “what is a channel” and “when is a channel dedicated to a type of media?” 1(a)(i) Is subscribing to a podcast the same as subscribing to a channel dedicated to episodic media? Looking at the rest of the patent, Channels are defined, in part, as a unit of media content organization that specify media that can be selected for immediate play. Could it be an issue if the play isn't immediate, but first requires a download? It very well could be, it could stop an infringement action in its tracks.
Next, the clause at 1(a)(ii) requires receiving a subscription request from the user. What if the user's request goes through a third-party proxy? At first blush, that would seem to get around the whole claim.
Clause 1(a)(iii) requires automatic downloads upon availability of the episode. One interpretation of that would be that it requires a “push” technology and not a “pull” like iTunes uses. The next subclause requires that the download occurs without further user interaction. Would that cover a podcast downloading program that required the user to specify when to check for new podcasts, even if that specification only need to be made once per podcast subscription? After all, it does require a user interaction separate from subscribing.
In short, you can't jump to conclusions about what a patent actually means based on it's title or what a press release says. . . they almost always demand a lot more work to analyze. I might not think the claim reads on the iTunes store, but ultimately, if it gets litigated, that's for a judge to decide. If it does get litigated, come back and we'll play with the prior art cited by the defendant.
I'm not trying to suggest that my take on the claims is what a court should adapt or that the drafters erred in prosecuting the patent. Not at all. I think the claims are quite good and this patent could be an important piece of IP for Volomedia. I don't think, as others have suggested, that this will kill podcasting as we know it.
Jul282009 | Steve O'Donnell
Open Source Chili
When I'm not managing my law office, writing or playing Wii Sports, I like to cook. As a patent attorney and cook, one of the most common questions I get is “can I copyright/trademark/patent my recipes?” The answer is a qualified “no.” but you can protect them as trade secrets.
Copyright protects artistic expression, so it can protect a story or narrative attached to a recipe, but won't give any protection to the recipe itself. There is an argument that cooking is an art so such artistic expression should be copyrighted, but that won't work. A particular dish may be art, delicious art, but its recipe is at least partially useful in that it instructs a reader how to make the dish. In cases where the artistic elements of a piece cannot be separated from the useful elements then the usefulness trumps and copyright will not protect it. Useful items can be protected by patents, but probably not recipes.
Unlike copyrights, patents undergo a ridged examination proceeding and must satisfy a number of requirements. For recipes, the big issues are probably going to be novelty and obviousness. That muffin recipe might be great, it might be the best muffin I've ever tasted, but based on all muffin recipes to have ever existed isn't there some prior art that teaches the same thing? Or maybe two or three other recipes that teach certain aspects of the recipe? It seems to be a very difficult requirement for a recipe to meet. Another requirement that could be a problem is utility, patents will only issue for useful goods. Although the level of usefulness needed is very low, I'm not sure that “delicious” would cover it. On the other hand, some recipes are patentable, such as this one for savory baking chips and this one for treating chest pain with lime juice. Granted, the lime juice patent is not much of a recipe, but it's one of my favorite patents and I wanted to use it. It has expired because the patentee didn't pay a maintenance fee, so if you feel a touch of angina coming on and want to try sucking a lime, go ahead. Let me know how that works out for you.
Trademarks also don't fit the bill. Trademarks identify the source of some goods, even if you printed an entire recipe on a t-shirt and tried called that your trademark, that wouldn't stop someone from taking your recipe and using it. It might stop them from being able to sell their own t-shirts marked with the same recipe, but why anyone would want to do that is beyond me.
What one is left with is trade secrets. As the name implies, trade secrets are secrets. They have served Coca-Cola and KFC quite well over the years. As an aside, I once knew someone that did some engineering work for KFC. He was able to automate 10 of the 11 secret herbs and spices, but the last one was added manually by a guy that would come out with an unmarked brown sack containing the most secret of the secret ingredients. Trade secrets won't help you at all if someone figures out your recipe, just look at how many copycat recipes one can find, so some extraordinary measures are taken to keep these secrets.
So, the bottom line is, if you don't want people to know your recipe, don't tell them.
Now, on to my non-patented, non-trademarked, non-copyrighted chili recipe:
Open Source Chili
from Steve O'Donnell (http://www.3cpatents.com)
time 4 hours
yield 6 servings
ingredients:
3 cans beans
1 t dried thyme
1 t dried oregano
1 t dried coriander
1 t dried red pepper flakes
4 t cumin powder
3 garlic cloves minced
1lb beef chopped
2 beef bouillon cubes
4 slices bacon chopped
1 red pepper chopped
1 onion chopped
4 oz mushrooms chopped
1.5 cup ketchup
1 tomato chopped
3 c water
2 oz corn chips
directions
1. Throw everything into a crockpot and cook on low about 4 hours or until done.
2. I trim the beef, usually a tip steak or something on sale and add it raw to utilize the rendered fat, lean hamburger can also be used, or any other protein you like. The bacon also goes in raw.
3. The corn chips are the “secret.” They disintegrate and add body and flavor. Without them, or masa powder, you get chili-soup instead of chili. I prefer Fritos, because if you buy a bigger bag you can make Frito Pie.
Chile pepper image from Forest and Kim Starr
Jul252009 | Steve O'Donnell
PEZ takes on the Museum of PEZ
On June 22, 2009, the PEZ candy company sued the proprietors of the Museum of PEZ for trademark infringement and the story was picked up by the press. I'll admit, at first glance I thought it was a bit draconian to sue over what many would consider free advertising, but there is more going on here than what most articles mention.
The basic story is not so new, in fact it happens pretty often. FOX has gone after Simpsons fan sites and an Australian company that tried selling Duff beer; McDonalds has attacked restaurants around the world that have used “Mc” or Mac,” including a topless one in Australia called “McTits.” Really, “McTits.” (note to self, consider vacation tax deductible business trip to Australia for research.)
In the PEZ case (complaint), a couple, presumably on a sugar high, began a PEZ museum celebrating all things PEZ. If that was all they did, the PEZ company might not have cared. Coca Cola has not tried to shut down the Coke fan page on Facebook, in fact, they are working with the page's creators. Why then has PEZ taken such a heavy handed approach?
The museum was not just a tribute to PEZ, but it was also a money making venture that traded off the PEZ marks. One point being made in all the reports I've seen on the case is the giant “Dispenser of PEZ” that ejected packages of PEZ through a familiar and delicious tracheotomy. The PEZ company is not happy that the museum has made it's own dispenser and has promoted it as “The World's Largest PEZ.” That is clearly a violation of the PEZ company's rights to the name and image of PEZ, but by itself, maybe not enough to get too riled up over.
As a bit more serious infringement the museum has manufactured and sold t-shirts bearing the PEZ trademark without permission from the PEZ company and has also reused original PEZ shipping boxes for their own shipments, both actions could reasonably make a person think that museum is authorized by the company.
But what I consider the clearest infringement, the museum has produced altered “PEZIDENT” dispensers for the 2008 election for both President Obama and Senator McCain, something the PEZ company has never done, and the museum has also produced an altered dispenser bearing the name “Burlingame Museum of PEZ Memorabilia.”
At a certain point, the trademark owner really has to do something. If they allowed someone else to use their trademarks with impunity, they could lose any rights they have in the trademark.
What the museum's owners should have done was hire a lawyer to advise them on what they could do and try to work out licenses with the PEZ company. It certainly would have complicated things since PEZ would probably want to be involved with the museum's operations, but that also would have kept them out of the trouble they're in now.
As I said at the beginning, these kind of trademark cases come up from time to time. I bet the next one is the Mexican Duff beer, in fact I'm not sure why FOX hasn't done something about that yet.
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Comments
Andrew
Thanks also for including the fact that some folks may get away with a technical violation of the law if the enforcement agencies don't bother with them. Of course, if enforcing this provision becomes a fad among state attorneys general - perhaps a scandal ignites a law-and-order crusade against illegal promotions? - then who knows?
Finally, for anyone who reads this far, please be aware that Facebook itself has new rules about how promotions can be run on their site, and violations of the rule can (if enforced, naturally) lead to a loss of business and personal (administrator) Facebook accounts. I posted a few possible workarounds for smaller businesses to my blog at http://manydoors.net/2009/11/10/promoting-a-contest-on-facebook-heads-up-new-rules/ for your consideration if you are concerned about how this might affect you or any of your clients.
But I have a question. A lot of contests are open to members only of a website. For example, a site where you can upload your funniest pet photos (off the top of my head, lol) but are required to register to be member of the site. Is this a problem? IS this considered part of a "conditioned entry" if it's only open to members of a particular website community?
Thanks!
I can't give specific legal advice in this forum, but all sweepstakes are open to only certain groups of people, it would be impractical to throw the names of everyone in the world into a (very big) hat. Every sweepstakes I've seen has some free way of entering: you don't have to buy the product to get a game piece, you can just send in a postcard. It still requires the participant to do something, but the promotor doesn't gain anything by receiving a bunch of postcards. Consider that in your pet photo hypothetical.