Discussion of ten issues companies and in house counsel should address when considering social media for business.
- 1. TOP 10 THINGS TO CONSIDER ABOUTSOCIAL MEDIA TO PROTECT IP AND AVOIDOTHER PROBLEMSBy Darin M. Klemchuk Partner, Klemchuk Kubasta LLP
2. TOP 10 THINGS TO CONSIDER WorkplaceSocial mediahas thecapability todramatically increase problems Employeeusage by providing a muchlarger, well-connected audience. ThirdParties 3. TOP 10 THINGS TO CONSIDER1. Its gone in a flash (or click)2. Employee posts in social media may beprotected speech3. Employee posts may subject the company toliability4. Employee posts may also create federaladministrative action5. Social media provides a much bigger, real-timeaudience for yesterdays problems6. Be careful using social media as a recruiting tool7. Registering usernames is a cost-effective, protective measure8. Social media policies are becoming a bestpractice9. The best defense is a good offense10. Social media adds additional litigationconsiderations 4. TOP 10 THINGS TO CONSIDER1.) ITS GONE IN A FLASH (OR CLICK) Even inadvertent statements or posts can innocently give away a companys trade secrets. Care must be taken to educate employees about proper use of social media and how to safeguard confidential information. Examples of this include inadvertent disclosure of product launches and other sensitive information.2.) EMPLOYEE POSTS IN SOCIAL MEDIA MAY BEPROTECTED SPEECH The National Labor Relations Board has ruled that certain employee gripes, while made publicly in social media at the companys expense, are protected and therefore, are not properly the subject of employee termination. 5. TOP 10 THINGS TO CONSIDER3. ) EMPLOYEE POSTS MAY SUBJECT THE COMPANY TOLIABILITY False statements made by employees or paid third parties about a companys products and services in social media and review sites have lead to claims for deceptive trade practices and false advertising. These risks should be communicated to employees.4.) EMPLOYEE POSTS MAY ALSO CREATE FEDERALADMINISTRATIVE ACTION The Federal Trade Commission promulgated new regulations in December 2009 that require disclosure of any connections between an endorser and a companys products and services. Employees who puff or exaggerate a companys products or services, even if completely truthful, without disclosing their employment relationship run the risk of subjecting the company to administrative action by the FTC. 6. TOP 10 THINGS TO CONSIDER5.)SOCIAL MEDIA PROVIDES A MUCH BIGGER, REAL-TIME AUDIENCE FOR YESTERDAYS PROBLEMS All the issues facing companies and employee relations, from employee discrimination and harassment to embarrassing pictures and comments at the company party, may be played out in a very public arena at the speed of light. Social media policies should be implemented to address these issues. Being on the losing end of an embarrassing video that went viral can devastate a companys brand.6.) BE CAREFUL USING SOCIAL MEDIA AS A RECRUITINGTOOL The highly personal nature of social media provides potential employers ample opportunity to learn extensive personal information about employment candidates that ordinarily would not be disclosed in a resume. Companies should exercise care in using this information to avoid claims for discriminatory hiring. 7. TOP 10 THINGS TO CONSIDER7.) REGISTERING USERNAMES IS A COST-EFFECTIVE, PROTECTIVE MEASURE One of the best ways to prevent trademark infringement is for a company to register its name and key brands as usernames for social media sites to prevent username squatters and other infringers from controlling the usernames. Proactive registration is much less expensive than attempting to recover the username later.8.)SOCIAL MEDIA POLICIES ARE BECOMING A BESTPRACTICE Companies should incorporate social media policies into their employee handbook or develop policies asseparate guidelines. The concerns outlined in this article are just a few of the issues that can be covered bya well drafted social media policy. Additionally, a social media policy should address who owns social mediaaccounts, usernames, posts, and other content. Finding out later that an employee or independentcontractor owns a Twitter handle and associated posts can be a painful lesson for a company. 8. TOP 10 THINGS TO CONSIDER9.) THE BEST DEFENSE IS A GOOD OFFENSEProactively monitoring brand and trademark usage in the social media space is often the best strategy to protect trademark rights. Often, a company can get a third party to stop using its trademarks or brand names with a simple request or through using the intellectual property policies of social media companies. This is usually a better and less expensive route than waiting and filing litigation later.10.)SOCIAL MEDIA ADDS ADDITIONAL LITIGATIONCONSIDERATIONS Because social media aggregates millions of users, the public relations aspect of this should beconsidered before commencing litigation. The trademark infringement case between North Face andSouth Butt, for instance, was played out heavily in social media. Typical aggressive litigation tacticsmay back fire and actually lead traffic to a sympathetic defendants social media pages. Carefulconsideration should be given to these consequences before suit is filed. 9. Darin Klemchuk is co-founder and managing partner ofKlemchuk Kubasta LLP, a Dallas-based IP boutique law firmthat offers comprehensive intellectual property legalservices, including litigation and enforcement of all forms ofintellectual property as well as registration and licensing ofpatents, trademarks, trade dress and copyrights. To contactMr. Klemchuk, email him at firstname.lastname@example.org