Category: Trademarks

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Social Media Legal Risks: Seven Ways to Maintain Social Media Marketing Legal Compliance

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In October 2009, the Federal Trade Commission released it’s updated “FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising.” The purpose of the update was to address the increasing use of endorsements by consumers, experts, organizations and celebrities in online marketing. The update is particularly relevant to the explosive growth of social media as a marketing tool.

The updated FTC Guides contain two notable areas of concern for marketers. First, the Guides removed the safe harbor for advertisements featuring a consumer’s experience with a product or service, the so-called “results not typical” disclosure. Second, the FTC Guides underscored the longstanding principle of disclosing “material connections” between advertisers and the consumers, experts, organizations, and celebrities providing reviews and endorsements of products and services.

Even with the illustrations provided within the FTC Guides themselves, it is still confusing for advertisers, marketers, bloggers and social media users to know how to comply with the guidelines. The purpose of this article is to provided simple, concrete standards to determine (1) when to make certain disclosures and (2) the type of disclosures required by the situation. I have grouped the disclosures into seven categories: Personal Opinion, Free Samples & Free Gifts, Promotional Relationship, Employment Relationship, Affiliate Relationship, Healthcare Disclosures, and Financial Guidelines & Disclosures. The key requirement to keep in mind is the obligation to disclose any relationship that may have influenced you.

1. Personal Opinion

If you write a review or blog post and your post contains only your own opinions, you haven’t received any compensation for the review or post, and you otherwise have no material connection to the topic of your post, you have nothing to disclose.

2. Free Sample/Free Gift

If you have been given a free copy, sample, or gift of a product or service and you write a review or blog post, you must disclose the facts and circumstances of how you received the item or service, even if you have not been paid to review or post on that topic. You do not run afoul of the disclosure rules if you receive payment unrelated your content. This disclosure is useful to keep in mind when your content relates to product previews, reviews of samples, services, gifts, books, software, music, movies, etc.

3. Promotional Relationships

If you write a review or blog post and your post is based upon an advertising relationship, and you have received compensation (cash, free services, product samples for personal use or a gift) for the review or post, you must disclose the nature of the relationship, whether you received anything of value, and information about relationships with advertisers or endorsers that would have a material impact about how a prospective consumer would view the message. This disclosure is useful to keep in mind when your content relates to paid posts, sponsored messages, tweets, fan page postings, etc.

4. Employment Relationships

If you write a review or blog post and your post is based upon an employment relationship, e.g. you are an employee or shareholder of a related company, you have a “material business relationship” to disclose, even if you are not being directly compensated for the message. You may post on behalf of a business or brand. In fact, it may even be part of your job description. Again, be mindful of the requirement to disclose any “connections” that may have influenced you, including both direct and indirect relationships.

5. Affiliate Relationships

If you write a review or blog post and your post is based upon an affiliate relationship, e.g., you have included affiliate links on your page, you must disclose the fact that the relationship exists and that you will be paid for referrals from your page.

6. Healthcare Disclosures

If you write a review or blog post and your content is based upon a connection to a pharmaceutical or healthcare product or program, you need to include relevant healthcare-related disclosures or information safety warnings, side effects, or official links with information.

7. Financial Guidelines & Disclosures

If you write a review or blog post and you work for a financial services company, you may be making investor-relations communications and your communications are subject to regulation by the NASD, SEC, FINRA and potentially state and federal regulatory agencies. The FINRA Guidance on Blogs & Social Networking Sites” can be found here. Record Retention: ensure that you can retain records of those communications. Suitability: a particular communication a “recommendation” for purposes of NASD Rule 2310 and is it suitable for potential recipients. Public Appearances: determine whether  your post part of an “interactive online forum” and whether supervision is required. Third-Party Posts: If your firm created or “sponsors” and online forum, be aware that, under certain circumstances, a customer’s or other third party’s content on a social media site may become attributable to the firm. Whether third-party content is attributable to a firm depends on whether the firm has (1) involved itself in the preparation of the content or (2) explicitly or implicitly endorsed or approved the content.

Clearly, legal and regulatory compliance for social media remains a minefield. Although this article is intended to give you a working knowledge of the types of risks created by, and disclosures required for, the use of Social Media, it is NOT LEGAL ADVICE. Each situation is unique and you should consult with qualified legal counsel regarding your specific circumstances.

ABOUT THE AUTHOR

David M. Adler, Esq. is an attorney, author, educator, entrepreneur and partner at the boutique intellectual property, entertainment & media law firm LEAVENS, STRAND, GLOVER & ADLER, LLC based in Chicago, Illinois. My responsibilities include providing advice to business units and executives on copyright, trademark, ecommerce, software/IT, media & entertainment and issues associated with creating and commercializing innovations and creative content, drafting and negotiating contracts and licenses, advising on securities laws and corporate governance and managing outside counsel. Learn more about me here: www.ecommerceattorney.com and here: Leavens Strand Glover & Adler, LLC.

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CMO Council Release 2011 State of Marketing Report

The CMO Council released the fifth State of Marketing Report in its annual series that surveys its members to gather insights and views specific to marketing mandates, spend, intentions and frustrations. The Report gathers a broad range of insights from major geographic regions and the top tiers of corporations. The Report identified three critical areas of attention that top the “to do” list of marketers in 2011: Performance, Customer Experience and Brand Loyalty.

Marketing Performance. According to the CMO Council, digital and new media strategies, including Social Media, dominate the imperative to grow market share and refine brand and value proposition. Marketers must use multiple marketing channels with a focus on interactivity, while defining and connecting measurements to assess effectiveness.

Customer Experience: Marketers must focus on providing an “experience” – not just a “message” – that is engaging, personalized and differentiated. While the platform for engaging the customer will undoubtedly include social platforms, it must also integrate the messaging and engagements through traditional channels. The goal is a seamless multi-channel journey for the customer, one that is gratifying and satisfying, thereby improving loyalty, retention and repeat purchase.

Measurement Feedback and Brand Loyalty. A major issue that continues to plague marketers is the struggle to mine customer data, extract valuable insight and create accurate predictive models. Gathering data from every impression, every search, every transaction, status update, or tweet can develop a more complete profile or the customer. However off-line data sources need to be synthesized as well, including localized marketing tools, adaptive merchandising systems, interactive self-serve technologies, mass-personalized messaging solutions, social media channels, mobile relationship marketing platforms, and corporate social responsibility programs (e.g. sustainability).

CLICK HERE TO DOWNLOAD REPORT

ABOUT THE AUTHOR

David M. Adler, Esq. is an attorney, author, educator, entrepreneur and partner at the boutique intellectual property, entertainment & media law firm LEAVENS, STRAND, GLOVER & ADLER, LLC based in Chicago, Illinois. My responsibilities include providing advice to business units and executives on copyright, trademark, ecommerce, software/IT, media & entertainment and issues associated with creating and commercializing innovations and creative content, drafting and negotiating contracts and licenses, advising on securities laws and corporate governance and managing outside counsel. Learn more about me here: http://www.ecommerceattorney.com and here: Leavens Strand Glover & Adler, LLC

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Facebook Marketing: Legal & Regulatory Compliance By David M. Adler, Esq.

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AllFaceBook Presents AF Expo San Francisco June 27-29, 2011

COMMERCE & MONETIZATION: Facebook Marketing: Legal & Regulatory Compliance

The use of social media for marketing and advertising purposes is one of the fastest growing areas for business and marketers. The advent of social media sites like Facebook provides the opportunity for authentic interaction and engagement with customers. Therefore, it is no surprise that it is being used as a marketing tool by companies large and small to help them achieve their strategic goals. But with every technological development and opportunity, new legal and business risks present themselves. Understanding and minimizing these risks will help you maximize the opportunities. A best practices approach to social media marketing involves having the company’s philosophy, methodology, and guidelines captured in a comprehensive written policy that is clearly and regularly communicated to the employees, and regularly updated to keep abreast of new developments, opportunities and evolving legal guidance. Attendees will learn how to identify the legal issues and develop policies and procedures to keep informed about the current technology, marketing strategies and regulatory compliance.

Everyone at AF Expo shares a belief that the Facebook experience represents a paradigm shift in the way that marketing professionals identify, engage and convert customers. In the past, marketers had to conduct research to locate customs and to determine their wants and needs. Once these were identified, you needed to convince your customers to value your brand, understand your product/service and ultimately purchase what you were selling.
Facebook changes all of these assumptions. It offers an interactive platform where customs are actively engaged in seeking out the brands they are interested in – whether individually or through trusted networks, tell brand owned what they do and do not like about their brand and tell marketers whether they are open to receiving more information. Interestingly, the platform allows marketers to continue the conversation even when the customer has nominally disengaged (through trusted networks).
Like everything else, with great power comes great risks. Facebook marketing that is thoughtful, respectful and legally compliant is extremely effective. [give examples] However, marketing efforts that fail to understand and account for the requirements to maintain legal compliance can be a fixated.
In the beginning one could poke, like and comment. But what happens when you can purchase? Facebook is rapidly becoming a platform to identify, locate, contact and transact business with consumers of goods and services, both physical and virtual, using currency that is both physical and virtual.
My presentation will identify and explain the risks for Facebook marketers, grouped  into three risk categories, “The Three Cs” of Facebook marketing:
Content
Connecting
Commerce
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Trending @ The Trademark Office: Bona Fide Intent

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Recent Decisions Highlight Need For Objective Evidence of Intent to Use Mark

Two recent decisions at the Trademark Trial & Appeal Board (TTAB) indicate what may be an emerging trend in Trademark practice: challenges based on lack of evidence of a “bona fide” intent to use a mark for which a Section 2(b) Intent-to-Use (ITU) application has been filed. The two relevant decisions are Kaplan v. Brady and Nintendo of America, Inc. v. Adar Golad.

Every ITU Applicant makes a legal averment, under oath, that it has a “bona fide” intent to use the mark in commerce. “To show a bona fide intent to use, there must be ‘objective evidence,’ that is evidence in the form of ‘real life facts and by the actions of the applicant.’ J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition, Sec. 19:14 (4th ed. 2009). There should be some ‘definite’ (if not necessarily ‘concrete’) plan by applicant. For example, ‘written plan of action for a new product or service,’ or a ‘re-branding of an existing line of goods or services.’ Id.”  In the two cited cases, lack of such definite evidence proved fatal.

The first decision is a Cancellation action where one party (Kaplan) sought to have the registration of another party (Brady)  cancelled. Kaplan’s claim for cancellation of Brady’s FUNNY-FACE mark was based on the existence of Kaplan’s ITU application for the mark FUNNY FACE FIZZY BLAST!  Although the parties exchanged several motions, of interest here is the Board’s determination that Kaplan lacked standing to prosecute the cancellation because Kaplan had “produced no documentation supporting his alleged bona fide intent to use such mark other than a “completely phony” and undated business plan that is merely a “slightly altered version” of a business plan for use of the mark BAKE OFF! on a “cleansing product.”

The second decision is an Opposition proceeding where one party (Nintendo) sought to prevent the registration of another party’s (Golad) mark by opposing the application.  Golad filed an ITU application to register the mark FLASHBOY for “plug and play interactive video games … comprised of computer hardware and software.” Nintendo opposed the registration on the ground that FLASHBOY is likely to cause confusion with its Registration for the mark GAMEBOY for game equipment, etc.

During discovery, Golad admitted that he did not have a business plan or any other documentation reflecting plans to “advertise, manufacture or otherwise use the mark FLASHBOY in commerce on the goods for which applicant seeks registration.” That was enough to establish a lack of bona fide intent.

Summary: Practice Tip

Both applicants and trademark counsel need to be aware of the requirement that an ITU application be supported by at least some definite evidence of the applicant’s bona fide intent to use the mark. While it remains unclear whether  a business plan alone is sufficient to meet this burden, an applicant must be able to produce some type of evidence, through documents or testimony, indicating plans to advertise, manufacture, distribute, license or otherwise use the mark.

Advertising, Branding, Certification Marks, Chicago, Content Development, Copyright, Creative Content, Entertainment, Entrepreneurs, Infringement, Litigation, Marekitng, Media, Monetizing Content, Production, Small Business, Social Media, Start-ups, Technology, Trademarks, Uncategorized

Neoformix Tweet Topic Explorer is a Powerful New Tool For Social Media Marketing

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WordCluster Analytics Provide Rapid Visualization of Hot Topics

Kudos to Barry Ritholz and his Blog The Big Picture for turning us all on to a phenomenal new social media metrics tool: Tweet Topic Explorer.  This Tool retrieves the most commonly used words in recent (no word on time period covered by “recent”) “tweets” for a specific user and displays these visually using bubble clusters. The area of the circle for a word is proportional to that word’s frequency. Words most often used together are grouped by color.

For example, using my Twitter handle, @adlerlaw, produces a cloud that shows the words “film,” “media,” “legal,” “social” and “Chicago” are among my most frequently used words.  Looking at groupings, “Film” is used most commonly with words like “tax” and “indie.” The words “Law” and “Legal” appear most frequently with “social,” “media” “brand,” and “trademark.”

The potential for brand managers and social media marketing professionals is obvious. First, a brand manager can quickly and easily analyze what key words are being used and how they are being used for any given twitter handle. Note that if your handle is identical to a brand name, this is critical visual evidence of the words being used in connection with your brand! Second, if you area  marketing professional, you can analyze individual handles to get feedback on words being used by social media influencers and other specific followers.

The value should be obvious by now. This tool creates an amazing feedback mechanism. The brand owner/marketing professional can easily see if the message they are trying to communicate is really coming through as well as they intend. For example, check out the word cloud for “Coca-Cola.” I was amazed to see that the most frequent word is “^GD.” I don’t know about you, but that’s not communicating anything about the brand. Whereas positive attribute words like “sharing” and “delicious” are much less prominent.

Also, the potential to uncover negative words will be displayed prominently. This gives brand managers insight into the areas, issues and users that they need to target.

I’m not saying its going to be easy. In order to get the most out of this tool, one is going to have to spend time analyzing users one by one. However, this is one of the best tools I’ve seen that breaks tweets down into a clear, visual, actionable matrix.

ABOUT THE AUTHOR

David M. Adler, Esq. is an attorney, author, educator, entrepreneur and founder of a boutique intellectual property law firm based in Chicago, Illinois. With over fourteen years of legal experience, Mr. Adler created the firm with a specific mission in mind: to provide businesses with a competitive advantage by enabling them to leverage their intangible assets and creative content in a way that drives innovation and increases the overall value of the business. Learn more about me HERE.

David M. Adler, Esq.  Safeguarding Ideas, Relationships & Talent®

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Create a “Watertight” Software Application Design & Development Contract

Careful Planning Yields Dependable Results

Rapid growth in the high-tech sectors, specifically regarding the Internet, mobile computing and related software and hardware, presents complex issues for small-business owners and their lawyers. Not surprisingly, many issues arise in contract negotiations between Web site or Application owners and their contracted developers.

Application development and hosting contracts are at the core of today’s new media practices. With the exponential growth of ecommerce and mobile computing, these agreements are tailored to cover all critical aspects of the online experience for all involved parties.

Negotiated poorly, contracts can open a Pandora’s box of unintended, unforeseen and unfortunate consequences. Negotiated wisely, Application development and hosting agreements provide predictable boundaries in a medium in flux. Risks, rights and responsibilities are constantly being redefined.

Well-drafted licensing agreements address both today’s realities and tomorrow’s possibilities.

Spell it out:

  1. Deliverables
  2. Project Schedule
  3. Intellectual Property Rights
  4. IP Registration
  5. Confidentiality
  6. Disclaimers
  7. Warranties

Once design and functional elements of an Application or web site have been defined, some businesses develop the Application internally with full-time programmers and project managers. However, the vast majority of small business owners hire third-party Application or software development firms to refine their visions into an interactive, reliable online entity.

An Application development agreement is used to define the development, performance, ownership and service expectations of the parties. Critical issues include understanding by both sides of short- and long-term expectations, designers’ proficiency with technical issues such as software and hardware interoperability, and ensuring project goals are clearly stated.

Key elements include:

Deliverables. The agreement must set forth, in as much detail as possible, deliverables expected to result from the developer’s efforts.
This includes, but is not limited to, a description of functional and design specifications; user interface requirements; operational flowcharts; software descriptions; training materials and documentation; network accessibility information such as passwords; interactive elements; information-capturing capabilities; browser and platform compatibilities; electronic commerce requirements; audio/video format requirements; linking structures; database structure requirements; code standards; screen and file layouts; general “look and feel” elements.

Project schedule. After the scope of the project is defined and mutually understood, parties need to address the schedule. This schedule should set forth development milestones, testing and acceptance periods, and payment timelines.

For example, the first phase usually entails completion of the coding of an Application or Web site’s basic functional components. After coding, the parties test the functional components for defects or errors. If the product thus far is accepted, then either the developer is paid for the completed portion or the client pays a deposit toward completion of the next phase.

The Web site owner needs to be realistic when establishing a schedule for milestones and testing, and acceptance procedures. Time periods for defect corrections need a built-in payment reduction component. In other words, if certain functional aspects do not test properly and the site owner provides written notification to the developer of the defect, the developer shall have a specified time — for example, one week — to correct the defect. If a correction is not made, total development costs will be reduced incrementally.

Intellectual property. Creation of an Application or Web site typically involves a variety of intellectual property rights issues. From purely aesthetic design elements to the structure, sequence and organization of database systems, user interfaces and graphics, the rights are ultimately very valuable. For this reason, ownership must be clearly established in the development agreement.

Although developers prefer contract language that exclusively grants them ownership rights to their creations, the Application or Web site owner should secure ownership of most of these rights through negotiation. Notably, under 17 U.S.C. Section 101 (Copyright Act of 1976), project deliverables can be designated “works for hire” in the Web development agreement. The Application or site owner may acquire rights to all customized creations, while the developer receives a license to use certain scripts and/or tools developed that are likely to be reused on future projects.

In addition, development also often involves the third-party intellectual property rights. In these circumstances, the site owner’s legal counsel should seek to secure the broadest possible scope of the license grant. In particular, the owner should seek a license grant that won’t create restrictions concerning how, where and by whom the licensed rights can be used. Licenses to software updates released during a specific period of time should also be sought.

On a related note, if a site owner obtains a license to use particular software, a source code escrow should be secured from the licenser. This enables the site owner to access the source code under certain defined circumstances, such as the licensor’s failure to perform or the licensor’s bankruptcy. Source code escrows ensure the site owner can correct and/or modify the software under circumstances in which the licensor itself is unable to do so.

Brand/Trademark/Domain name  registration. If the developer will register the domain name, the site owner should insist on being identified as owner of the domain name. In addition, the owner should be designated as administrative, technical and billing contact. If the application will be “branded” or if it the owner feels the name should be protected, the owner should consult with a qualified lawyer to determine whether the name can be protected and the requirements of securing the broadest range of protection.

Confidentiality. Development of an Application or Web site is integral to an ecommerce business, and the process involves an exchange of confidential information between the Application or Web site owner and the developer. Confidential information should be defined. The agreement should set forth the obligations of the receiving party not to disclose or otherwise use the specified information.

Disclaimers and limits of liability. Developers often demand extensive liability disclaimers and/or limits. For example, a developer might disclaim liability for failure to protect credit card or other sensitive user information. A developer can also seek to limit total liability under all circumstances to the amount paid under the development agreement for any damage resulting from the developer’s negligence, intentional acts and/or omissions.

These disclaimers are usually one-sided and overly broad. Therefore, legal counsel should scrutinize these provisions to ensure the Application or Web site owner is not exposed to unfair risks.

Disclaimers or liability limits for intentional conduct — as well as broad disclaimers regarding permanent data loss — should almost never be accepted.

Warranties. Both parties should be required to warrant that content used, including software, links, meta tags, frames and business models, does not infringe copyrights, trademarks and/or patents of any third party.

Regarding this, the developer should specifically warrant that all necessary third-party licenses in third-party products incorporated into the Application or Web site have been secured.In light of recent patents for business models — such as Amazon.com’s one-click buying method — this warranty provision should be carefully examined. In fact, where appropriate, the Web site owner should seek patent counsel advice to ensure third-party patent rights are not infringed.

No surprises

A savvy Application or Web site owner will ask the developer to warrant that the Application or Web site or specific applications will operate “free from any substantial defects” for a specific period of time, such as 90 days after final delivery. In such cases, the developer should be required to warrant that any additional efforts to correct the problem will not materially alter the Web site owner’s original goals.

The developer should also be required to warrant that industry “best practices” have been followed in development, safety and security measures and performance criteria — for example, optimal loading time of Web pages.

Finally, as with all services contracts, the developer should warrant that:

  • The services will be performed in a professional and workmanlike manner and that none of such services or will be inconsistent with any obligation the developer might have to others.
  • The developer will employ adequate personnel and deliver the services in accordance with the specifications set forth in the agreement.
  • All work shall be the developer’s original work, and none of the development, use, production, distribution or exploitation thereof will infringe, misappropriate or violate any intellectual property or other right of any person or entity.
  • The developer has the authority to provide the Web site owner with the necessary assignments and rights.
  • The developer is duly-organized, fully-licensed, validly exiting and “in good standing” in the jurisdiction of its operation and every jurisdiction within which it provides services.
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When Hiring a Lawyer For Small Business Legal Needs What Questions Should I Ask?

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Hiring a lawyer

While small businesses often need some legal advice, they can’t always find a professional with the right expertise at a budget the small business can afford.  Since small businesses usually don’t need lawyers that often, when it comes time to review a contract, buy out a partner or protect their brand and trademark, they often don’t know where to start.  The purpose of this article is to give executives a business owners a guide on how to ask a prospective lawyer the right questions to get the service one needs at a price that one can afford.

To get answers to questions about hiring a lawyer, please select one of the links below.

How do I hire a lawyer?

Lawyers are highly-trained professionals who counsel individuals and businesses in a full range of personal and corporate legal matters. Many business transactions have legal implications, so you should try to find a lawyer whom you can treat as a trusted advisor. These questions are designed to help you choose the right lawyer for your situation.

What can a lawyer do for me?

Lawyers provide legal guidance. This doesn’t mean that they can make your business decisions for you. A lawyer should identify legal issues of concern to you or your small business, tell you what the law says about these issues, and advise you on how to address them.

How can a lawyer help me in setting up a business?

A lawyer can:

  • Explain the advantages and disadvantages of a sole proprietorship, a partnership or a corporation;
  • draft a partnership agreement or incorporate your company;
  • review financial documents for your business such as a loan;
  • review leases of premises or equipment;
  • act for you in the purchase of property;
  • review franchise agreements;
  • draft standard form contracts for use in your business;
  • advise you how to best protect your ideas, trademarks, designs and know-how.

How can a lawyer help when my business is up and running?

A lawyer can:

  • help you negotiate contracts and put them in writing;
  • advise you on hiring and firing employees;
  • advise you about doing business in other provinces and countries;
  • help you collect unpaid bills;
  • defend any lawsuits against you;
  • advise you about taxes.

If I decide to get out of business, how can a lawyer help me?

A lawyer can:

  • help you sell your business;
  • help you sell you ownership interest if you are one of several owners;
  • arrange for the transfer of the business to your children;
  • dissolve a corporation or LLC.

When do you need a lawyer?

The recommended approach is to seek the advice of a lawyer whenever a legal issue arises that involves your business. Since it is not always clear when that happens, many problems are solved without resorting to lawyers. When an issue arises, you must first decide whether you need a lawyer at all. In order to know if you should solve your problem on your own, ask yourself the following questions:

  1. What are the consequences if you are unsuccessful?
  2. How complex is the law in your situation?
  3. Do you have the time and energy?

If you are still unsure, some outside professionals, advisors or para-professionals may be useful:

Check with your Board of Directors or Board of Advisors; they can provide information about the steps they went through and the resources they used in solving their problems. Contact government and non-profit organizations for income tax, legal aid, consumer protection, employment standards, etc.

Check with other professionals: accountants, bank officers, insurance agents. For some routine matters, legal assistants, para-legals and notaries public are useful. While not allowed to give legal advice, they can provide added value in familiarity with standard corporate forms and filing requirements.

Also, don’t forget public libraries, legal aid services, student legal services, small claims courts, reading self-help books and other resources such as books, pamphlets and videos.

How do I contact a lawyer?

Give him a call. Most lawyers are happy to steer people in the right direction and calm fears about the legal process. There are several advantages to this approach. The main one is that a lawyer can quickly cut to the heart of your problem, distinguish between legal and non-legal problems. Another advantage is that you usually will not be charged for this phone call. Finally, a lawyer will not only keep your problem confidential, but has the ability to assess it from a less emotional perspective.

Please feel free to call us at (866) 734-2568 should you have any questions.

How do I find a lawyer?

First, try to identify the areas of law in which your problems fall so that you can find a lawyer capable with dealing with all these areas. Some of the main areas of legal practice linked to business are:

  • Corporate/commercial/securities law (incorporation, buying/selling a business, drafting shareholders/partnership agreement)
  • Labor/employment law (negotiating and interpreting collective agreements, resolving disputes, explaining obligations, advising about restrictive covenants, dismissals)
  • Civil litigation law (suing, being sued, collecting debts, negotiating and settling)
  • Real Estate law (buying or selling land or property, negotiating a lease, solving landlord/tenant disputes, mortgaging property)
  • Wills and estates (drafting or challenging a will, probate)

What should I ask a prospective lawyer?

Some questions you should ask a prospective lawyer are:

  • How many years are you in practice?
  • How long have you been with your current firm?
  • What areas of law do you practice?
  • Are you a partner or an associate?
  • Time and accessibility
  • How quickly can I expect a resolution?
  • When can we meet?
  • How much can I expect top pay?
  • How do you charge for your services?
  • Do you provide your clients with a detailed written statement of fees?
  • Do you charge anything for the first meeting?
  • Do you communicate via telephone, cell phone, fax or email?

How can I help my lawyer?

Ways you can help your lawyer include:

  • Be honesty and open
  • Tell the lawyer all the facts, even the ones that you think are “bad”.
  • Keep your lawyer up to date on any events or any changes relating to your file.
  • Ask for advice in plain language and summarize how you understand it.
  • Ask to be directed to any reading that you could do to better understand.
  • Ask for a description of the steps your lawyer plans to take and think about the way you could help at each step.
  • Stay informed and keep track of what transpires on your file.
  • Take notes at all meetings and list tasks to be completed.
  • Ask for copies of all correspondence on file.
  • Have confidence in your lawyer’s advice and follow his/her instructions.
  • Do not harass your lawyer. If you need more attention, discuss way in which he/she can keep you informed.
  • Be prepared to accept both positive and negative advice.
  • Never do anything concerning your case without consulting your lawyer.
  • Provide information to your lawyer as soon as possible after he/she requests it.
  • Pay your bills on time and be available if your lawyer needs you.

How do lawyers calculate their fees?

Depending on the complexity of the issues, the services required, and the degree of experience of the lawyer, fees can be charged in different ways:

  • Billed hourly: charged a rate for the time they spend working for you (e.g. the time spent reading a letter or talking on the phone).
  • Flat Fee: charge a flat rate for a particular matter, usually when they can predict how long the work will take: incorporations, trademarks.
  • Contingency Fee: in some matters, the lawyer’s fee will be a stated percentage of the amount of money collected from the lawsuit.
  • Retainer: provide a range of specified services for a fixed monthly or annual fee.

In addition, lawyers will also bill for disbursements such as long distance phone calls, photocopies, document filling fees, experts’ reports and travel expenses.

Safeguarding Ideas, Relationships & Talent®

Executives face an often confusing and changing set of challenges trying to ensure that their business remains legally compliant. Yet few can afford the highly-qualified and versatile legal staff needed to deal with today’s complex and inconstant legal and regulatory environment. Adler & Franczyk is a boutique law firm created with a specific mission in mind: to provide businesses with a competitive advantage by enabling them to leverage their intangible assets and creative content in a way that drives innovation and increases the overall value of the business.

We approach our relationship with each client as a true partnership and we view our firm as an extension of their capabilities. Our primary value is our specialization on relevant and complex issues that maintain the leading edge for our clients. We invite you to learn more about the services we offer and how we differ.

On the web: www.ecommerceattorney.com
On Twitter: http://www.twitter.com/adlerlaw
On LinkedIn: http://www.linkedin.com/in/adlerlaw

Subscribe to Ping® The Legal eNewsletter

We look forward to the opportunity to discuss any questions you may have regarding the range of business, technology and intellectual property services we offer. Please feel free to call us at (866) 734-2568 should you have any questions.

Advertising, Branding, Content Development, Copyright, Creative Content, Entertainment, Entrepreneurs, Infringement, Media, Monetizing Content, Technology, Trademarks, Uncategorized

David M. Adler, Esq. To Speak at Socialize 2011 on Legal Issues For Social Marketers

Picture of notebook screen with Facebook and F...
Image via Wikipedia

The use of social media for marketing and advertising purposes is one of the fastest growing uses of the Internet. The advent of social media sites like Facebook, Twitter, YouTube and LinkedIn provides the opportunity for authentic interaction and engagement with customers. That’s why it comes as little surprise that these services are being used as marketing tools.  But with every technological development and opportunity, new legal and business risks present themselves. Understanding and minimizing these risks will help you maximize the opportunities for your business.

At Socialize 2011, taking place March 31 – April 1, 2011 at The New Yorker Hotel in New York City, David M. Adler, Esq. will provide a presentation focused on taking a “best practices” approach to social media marketing. Attendees will learn how to identify the legal issues and develop policies and procedures to keep informed about the current technology, marketing strategies and regulatory compliance. The presentation intends to cover the following issues:

Issue:  Intellectual Property

  • Trademarks & Brands
  • Copyright & Content

Issue:  Privacy & Publicity

  • Right of Publicity
  • Endorsements

Issue:  User generated content

  • positive and negative comments
  • Copyright Infringement
  • Unmasking “anonymous” posts

Issue:  Regulatory Compliance

  • FTC – Dot Com Disclosures: Information about Online Advertising
  • “Freemiums”
  • FTC – Guides for the Use of Environmental Marketing Claims
  • CAN-SPAM compliance

Issue:  Faking it

Takeaways:

  • Issue Spotting
  • Creating & Maintaining Policies & Procedures
  • Compliance
  • Continuing Education
Related Articles
Advertising, Branding, Certification Marks, Copyright, Creative Content, Eco Labels, Ecolables, Entrepreneurs, Greenwashing, Technology, Trademarks, Uncategorized

Risks & Rewards of Green Branding

The Earth flag is not an official flag, since ...
Image via Wikipedia

Confused by what is and is not Green? You’re not alone.

Part 1 of 5

The last few years have seen a dramatic increase in consumer awareness and concern for environmentally-conscious or “green” consumerism. Coincidentally, as consumers join the movement to be more eco-friendly, businesses have likewise embraced both being green and being perceived as green in their marketing practices. The rapid proliferation of “green” brands begs the question “How do consumers and institutional buyers know if something is “green” or “eco-friendly”?”

To address such concerns, companies and industries have launched “ecolabels” and “eco-certification” schemes to add credibility to green claims, guide eco-friendly purchasing, and improve environmental performance standards. Demand for products with ecolabels is growing, though confusion about which companies are truly environmentally responsible persists.

Since environmental claims made in advertisements are often intangible, businesses need to make them resonate to consumers beyond just feeling good about what they are buying. Consumers and businesses can benefit from eco-labels by: (1) understanding how certification marks, labels and logos can be used to signal green credentials, (2) using and maintaining proper best practices and guidelines to which companies must adhere in order to meet a certified standard, (3) understanding which companies have succeeded in branding and why, (4) understanding how to avoid accusations of “greenwashing”, or exaggerated claims in their marketing, and (5) keeping informed about the changes in the legal and regulatory environment, such as the FTC‘s Green Guides for marketers.

This five-part series on “green” branding will discuss how to identify these issues, provide guidance on proper use of “green” certification marks, a/k/a “eco-labels,” develop policies and procedures to avoid misleading or unproven environmental claims and keep informed about the current trends, marketing strategies and regulatory regimes.

  1. Certification marks, and their role in signaling green credentials

A certification mark “certifies” the nature or origin of the goods or services to which it has been applied. This includes, for example, region or location or origin, materials of construction, method or mode of manufacture or provision, quality assurance, accuracy of the goods or services or any definable characteristic of the goods or services. It can also certify manufacture or provision of services by members of a union or other organization to certain standards.

For example, the Fair Trade Certified™ label applied to food products ensures that farmers and farm workers in developing nations receive a fair price for their product, have direct trade relations with buyers and access to credit, and encourage sustainable farming methods, without the use of a dozen of the most harmful pesticides, and forced child labor. The seal is viewed as a meaningful and clear signal that the producer supports the concepts of social responsibility, pest management and sustainable agriculture.

Under U.S. federal trademark law, a certification mark has a specific definition and certain characteristics. The term “certification mark” means any word, name, symbol, or device, or any combination thereof that is used by a person other than its owner to certify origin, material, manufacture, quality, accuracy, or other characteristics of goods or services.

There are generally three types of certification marks. First, there are geographic certification marks that signal that goods or services originate in a specific region (e.g., ROQUEFORT for cheese). Second, there are quality certification marks that indicate goods or services meet certain standards in relation to quality, materials, or mode of manufacture (e.g., approval by Underwriters Laboratories). Third, there are labor certification marks that certify (i) services performed or labor used in the manufacture of a product were provided by a member of a union or other organization, or (ii) the service provider meets certain standards.

Certification marks possess two distinct characteristics that set them apart from trademarks or service marks. First, unlike a trademark, a certification mark is used by someone other than the owner. The mark is generally applied by other persons to their goods or services, with authorization from the owner of the mark. Second, while the exclusive purpose of a trademark is to indicate commercial source or distinguish the goods or services of one person from another, a certification mark has no such purpose.

A certification mark is not used in the trademark sense of “used.” Rather, it may be used only by persons other than the owner of the mark. That is, the owner of a certification mark does not apply the mark to his or her goods or services and, in fact, usually does not attach or apply the mark at all. The owner of a certification mark does not produce the goods or perform the services in connection with which the mark is used, and thus does not control their nature and quality. Rather, “control” consists of ensure that users of the mark meet the standards established by the certifier.  The purpose of a certification mark is to inform purchasers that the goods or services of a person possess certain characteristics or meet certain qualifications or standards established by another person.

Proper us of “eco-friendly” certification marks can help businesses and marketers to add credibility to “green” marketing claims. As noted above, since the user of a certification mark is not the owner, the organization doing the certifying cannot itself engage in the production or marketing of the goods or services. Furthermore, the organization must be competent to certify that the requirements have been met. This is achieved by confirming adherence to the rules and regulations, providing methods of testing and quality control, and employing appointed individuals or bodies to periodically ensure conformance by a user.

Content Development, Copyright, Creative Content, Infringement, Litigation, Monetizing Content, Technology, Trademarks, Uncategorized

Help! My trademarks are being used on eBay. How can I stop them?

Image representing eBay as depicted in CrunchBase
Image via CrunchBase

What can I do to stop others from using my Trademarks on eBay?

What is eBay’s Verified Owner Registration Program (VeRO)?

What should I include on my VeRO page?

How I do to stop others from using my Trademarks on eBay?

eBay is one of the world’s leading online marketplaces. It’s a place where “anyone can trade practically anything.” As a result, eBay has enjoyed widespread use from both legitimate and illegitimate merchants. eBay does not authenticate merchandise before sale. Unfortunately, unscrupulous sellers use eBay to auction off inferior branded-products, whether passing them off as genuine or claiming that they are fake, faux, replicas or look-alikes.  Manufacture and sale of these goods can constitute counterfeiting, a crime and a civil action punishable under federal and state laws with steep penalties.

What is eBay’s Verified Owner Registration Program (VeRO)?

eBay has created a program to help rights owners report auction listings that infringe their rights. This program is called the Verified Rights Owner (VeRO) Program, and includes “companies and individuals representing every type of intellectual property – from major software companies to video game developers to rock bands to luxury good manufacturers.” Any intellectual property (such as a copyright, trademark or patent) rights holder whose rights may be infringed by listings or items sold on eBay may participate in the Program.

If you have a good faith belief that a listing on eBay infringes your copyright, trademark, or other intellectual property rights, download eBay’s Notice of Claimed Infringement (NOCI) form, fill it out, and fax it to eBay.

Create an About Me page. You can create a free “About Me” page on eBay to communicate directly with eBay users about your company, your products and the intellectual property rights you own. eBay will include it in its list of VeRO Participant About Me pages.

What should I include on my VeRO page?

Here are some suggested statement that should be on your eBay VeRO page:

  1. BUYER BEWARE: Most of the purported YOUR BRAND NAME HERE products and packaging available on eBay is counterfeit.
  2. Genuine, new BRAND merchandise is available only through BRAND stores and boutiques, BRAND catalogs and via the web at http://www.——.com.  BRAND carefully controls distribution of its high-quality merchandise.
  3. Unfortunately, unscrupulous sellers are auctioning on eBay inferior products marked with the BRAND trademarks, whether passing them off as genuine or claiming that they are fake, faux, replicas or look-alikes.  Manufacture and sale of these goods in any such case constitutes counterfeiting, a crime and a civil action punishable under federal and state laws with steep penalties.
  4. BRAND marketing materials are graphically distinct, appealing and copyrighted.
  5. Unauthorized use of BRAND photography and graphics constitutes copyright infringement.
  6. BRAND has established a worldwide reputation for its products. It has invested significant time, effort and money over more than ##### years to promote its trademarks and trade name BRAND and its distinctive packaging.  As a result of these efforts, the BRAND trademarks and copyrights have enjoyed widespread fame and recognition throughout the world.
  7. The Company works diligently to protect its reputation for providing the highest quality products and to protect its customers from duplicitous sellers who offer fake merchandise that is inferior to genuine BRAND merchandise. BRAND files lawsuits and works closely with law enforcement, the F.B.I., customs and investigative agencies to protect its intellectual property rights.
  8. BRAND RIGOROUSLY PROTECTS ITS TRADEMARKS AND COPYRIGHTS.
  9. Frequently Asked Questions (FAQ)
  • Q: Why was my auction suspended/cancelled? A: BRAND has a good faith belief that the merchandise that you posted for auction or sale is counterfeit or otherwise infringes BRAND trademarks or copyrights.
  • Q: Why did eBay allow me to post my auction? A: eBay does not authenticate merchandise before sale.
  • Q: How can I tell if the item I offered or purchased is real? A: The only way you can be certain that you are purchasing a genuine BRAND product is to purchase it from a BRAND retail store, via our website (www.—–.com) or though a BRAND catalogue.  BRAND stores do not authenticate merchandise. A good jeweler or appraiser may be able to do this for you.
  • Q: Why can’t I use BRAND graphics to sell my merchandise? A: BRAND marketing materials are protected under copyright law. Unauthorized use or reproduction is strictly prohibited.

About The Author

Safeguarding Ideas, Relationships & Talent®

Executives face an often confusing and changing set of challenges trying to ensure that their business remains legally compliant. Yet few can afford the highly-qualified and versatile legal staff needed to deal with today’s complex and inconstant legal and regulatory environment. Adler & Franczyk is a boutique law firm created with a specific mission in mind: to provide businesses with a competitive advantage by enabling them to leverage their intangible assets and creative content in a way that drives innovation and increases the overall value of the business.

We approach our relationship with each client as a true partnership and we view our firm as an extension of their capabilities. Our primary value is our specialization on relevant and complex issues that maintain the leading edge for our clients. We invite you to learn more about the services we offer and how we differ.

On the web: www.ecommerceattorney.com
On Twitter: http://www.twitter.com/adlerlaw
On LinkedIn: http://www.linkedin.com/in/adlerlaw