Do you work with start-up companies and need a basic understanding of the various intellectual property issues that can arise?

I will be co-presenting in this online seminar that will help you:

  • understand the trademark and copyright problems your client may encounter with branding;
  • learn how to protect your client’s branding once established;
  • familiarize your practice with patents, including what they protect, timing, and strategies to prevent inadvertent loss of patent rights before filing the application;
  • understand trade secrets and the importance of non-disclosure and confidentiality agreements;
  • recognize intellectual property issues relating to technology, including open source code and the cloud;
  • establish a proactive approach toward intellectual property ownership between cofounders, employees, and vendors; understand business names, domain names, promotional issues, and website content concerns.

The program qualifies for 1.5 hours MCLE credit.

I would like to personally invite you to attend the upcoming Law Ed program titled, “Identifying Intellectual Property Issues in Start-Ups,” which I will be co-presenting via live webcast on Tuesday, May 27th.

Presented by the ISBA Business Advice and Financial Planning Section

Co-Sponsored by the ISBA Intellectual Property Section

Online marketing continues to evolve and affiliate marketing can be a great method of building brand awareness. Online marketers need to stay ahead of legal and regulatory compliance trends. This article looks at recent Federal Trade Commission (“FTC,” “Commission,” or “agency”) activity that impacts online marketing.

Given the lack of a comprehensive federal regulatory scheme, and the increasing awareness of deceptive marketing practices, it is not surprising that the FTC has ramped up enforcement efforts against entities not covered by existing, industry-specific federal regulations over the last decade. Notably, one company has defended itself against the FTC by challenging the FTC’s authority to pursue such broad enforcement.

Jurisdiction

The widely-watched case of FTC v. Wyndham Worldwide Corp is not just about Cybersecurity.

The Federal Trade Commission (FTC) has just won the first major round of its fight with Wyndham Hotels over data security. However, the importance of the case has more to do with the FTC’s jurisdiction, challenged when Wyndham moved to dismiss the FTC’s case. Affirming the FTC’s broad jurisdiction, the federal judge overseeing the controversy noted that the case highlights “a variety of thorny legal issues that Congress and the courts will continue to grapple with for the foreseeable future.”

Affiliate Marketing: A Roadmap for Compliance: Text Message Marketing

The Commission is cracking down on affiliate marketers that allegedly bombard consumers with unwanted text messages in an effort to steer these consumers towards deceptive websites falsely promising “free” gift cards.

For example, in eight different complaints filed in courts around the United States, the FTC charged 29 defendants with collectively sending more than 180 million unwanted text messages to consumers, many of whom had to pay for receiving the texts. The messages promised consumers free gifts or prizes, including gift cards worth $1,000 to major retailers such as Best Buy, Walmart and Target.

By now, many in the Affiliate Marketing industry are familiar with the Legacy Learning Systems case. In March, 2011 the FTC settled charges against Legacy — which sells instructional DVDs — that Legacy represented, directly or indirectly, expressly or by implication, reviews of their products were endorsements reflecting the opinions of ordinary consumers or independent reviewers, when many of the favorable endorsements were posted by affiliate marketers who received a commission from Legacy for sales they generated.

Regardless of the form of affiliate marketing – email campaigns or text message campaigns – there are a couple key take-aways here.

First, identify and disclose a material connection between a product user or endorser and any other party involved in promoting the product. A “material connection” is a relationship that affects the credibility of an endorsement and wouldn’t be reasonably expected by consumers. See our article about complying with the endorsement guides here.

Second, set up and maintain a system to monitor and review affiliates’ representations and disclosures to ensure compliance. For example, Legacy looked at its top 50 revenue-generating affiliates at least once a month, visiting their sites to review their representations and disclosures. It has to be done in a way designed not to disclose to the affiliates that they’re being monitored.

Third, understand he requirements for conducting legally-compliant text message marketing. The Telephone Consumer Protection Act (TCPA) makes it unlawful to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice … to any telephone number assigned to a . . . cellular telephone service … or any service for which the called party is charged for the call. The prohibition on calls to cell phones applies to text messaging.

At the end of August, the California passed an amendment to the California Online Privacy Protection Act that will require commercial websites and services that collect personal data to disclose how they respond to Do Not Track signals from Web browsers.

AB 370, as introduced by California Assemblyman Al Muratsuchi, requires a business that discloses a customer’s personal information to a third party for direct marketing purposes to provide the customer, within 30 days after the customer’s request, as specified, in writing or by e-mail the names and addresses of the recipients of that information and specified details regarding the information disclosed.

This bill, available here, would declare the intent of the Legislature to enact legislation that would regulate online behavioral tracking of consumers.


The rapid growth and expansion in the mobile market presents a number of privacy and security issues for mobile software and hardware developers, platform operators, advertisers and marketers who collect, store, use and share consumer information. As awareness of privacy risks grow among consumers, legislators and regulators are increasing scrutiny of mobile privacy and privacy policies in mobile apps.

Businesses operating in the mobile industry are facing a widening array of Regulatory compliance issues. Staying abreast of legal risks and issues can be daunting. How can mobile operators and application developers spot trends and adjust strategies to start competitive? First, keep an eye on FTC activity. Second, monitor new bills coming up in Congress. Third, follow this blog, adlerlaw.wordpress.com.

FTC Privacy Enforcement Actions

Earlier this year, the FTC expanded mobile privacy obligations beyond software to include hardware makers when it announced a settlement with HTC America over charges that HTC failed to use adequate “security by design” in millions of consumer mobile devices. As a result, the company is required to patch vulnerabilities on the devices which include #Smartphones and #Tablets. The settlement, the first action involving a mobile device manufacturer and the new “Privacy By Design” guidelines, sheds some light on the legal risks for mobile device manufacturers and, to some extent, mobile application developers.

Congressional Privacy Laws, Bills & Initiatives

Not surprisingly, federal legislators are taking up the mantle of Consumer Privacy in the area of Mobile Applications. In January 2013, U.S. Rep. Hank Johnson, introduced his mobile privacy bill, The Application Privacy, Protection and Security Act of 2013, or the “APPS Act,”. The bill focuses on transparency, user control and security, mandating that an application 1) provide the user with notice of the terms and conditions governing the collection, use, storage, and sharing of the personal data, and 2) obtain the consent of the user to the terms and conditions. Significantly, the privacy notice is required to include a description of the categories of personal data that
will be collected, the categories of purposes for which the personal data will be used, and the categories of third parties with which the personal data will be shared.

The Bill also requires that application developers have a data retention policy that governs the length for which the personal data will be stored and the terms and conditions applicable to storage, including a description of the rights of the user and the process by which the user may exercise such rights in addition to data security and access procedures and safeguards.

App developers unaware of the data protection requirements may face significant risks and potential harm to their reputation among users of smart devices. If you have concerns about what key data protection and privacy legal requirements apply to mobile applications and the types of processing an app may undertake contact us for a mobile app legal audit. Vague or incomplete descriptions of the ways which a mobile app handles data or a lack of meaningful consent from end users before that processing takes place can lead to significant legal risk. Poor security measures, an apparent trend towards data maximisation and the elasticity of purposes for which personal data are being collected further contribute to the data protection risks found within the current app environment.

Learn more David M. Adler here.

As a result of the rapid shift in marketing from unilateral one-to-many communications, to the multilateral, many-to-many or many-to-one conversations enabled by Social Media, employees and employers are struggling to manage accounts that are used for both work and personal purposes.

This new phenomenon has benefits, but it also creates a number of legal challenges. For employees, it may result in greater efficiency, more opportunities for authentic customers engagement and the ability to stay on top of the most current grands and business issues. For employers, it presents opportunity to reap substantial benefits from lower communications and customer support costs. For in-house counsel, it raises a host of legal and practical issues with few easy solutions and significant liability and regulatory risks.

First, there are hardware issues. Smartphones, tablets and other personal electronics often have social networking capabilities built in. in addition, they contain contain both personal and business data. Because these devices are always on and always connected, they are more than just personal property. They have become essential business tools. For both sides of the workplace equation, employers and employees must understand where the privacy lines fall between personal versus work-related information.

Second, there are data issues. Employers must balance their needs to monitor employee usage, employees’ privacy concerns, and the risk of liability for theft or exposure of data if a device is lost or stolen, or from lack of proper safeguards on account usage. For in-house counsel tasked with drafting policies to address these risks, , Prior to implementation of any policy, the legal team needs to educate front line employees and management on reasonable expectations of privacy and security and the harms that the organization seeks to prevent.

Lastly, recent cases such as the Cristou v. Beatport litigation, highlight the struggle to define and control the beginning and end of employee social media accounts, ownership and protection of intellectual property and the post termination risks that arise from the absence of appropriate policies.

As we prepare to start a new year, the time is ripe to establish security and privacy policies governing creation, maintenance and use of employees’ social media accounts for work functions. In-house counsel must lead the charge to educate, inform and train employees about privacy, security and evidence-recovery implications associated with use of social media.

HHS has provided guidance about methods and approaches to achieve de- identification in accordance with the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy Rule. The guidance explains and answers questions regarding the two methods that can be used to satisfy the Privacy Rule‘s de-identification standard: Expert Determination and Safe Harbor1. This guidance is intended to assist covered entities to understand what is de-identification, the general process by which de- identified information is created, and the options available for performing de- identification.

1. Content & Marketing

MutualMind Signs Agreement With LexisNexis to Offer Advanced Social Media
MarketWatch (press release)

PRNewswire via COMTEX/ — MutualMind, an award-winning social media technology developer based in Dallas, Texas, announced an agreement today with LexisNexis, a leading provider of legal content and technology solutions.

Facebook: Should Law Firms Bother?
Business 2 Community

While consumer brands have embraced Facebook as a key tool in building deeper customer engagement, the biggest social network largely remains terra incognita in the legal world. The sector has certainly harnessed professional networking sites.

2. International

Bahrain may act against social media abuse
Trade Arabia

Legal action could be taken against people in Bahrain, who incite violence and spread sectarianism on social media, said a top official. The initiative comes as a new code of honour for social media users is set to be launched by the Bahrain Bloc.

3. Law Enforcement

Infographic: How police investigators are using social media
Police News

An overwhelming majority of investigators using social media for investigative purposes are “self taught,” according to a new survey of 1200 Federal, state, and local law enforcement professionals.

Social media for investigators: Why Police departments should invest in training
Police News

That’s but one of the many conclusions found in a comprehensive new survey — conducted in a partnership between PoliceOne and LexisNexis Risk Solutions — focused on the impact of social media on law enforcement in criminal investigations. Among the …

4. Employees & Workplace

What your social media profile is telling future employers? (Take our poll)
Plain Dealer

The State of Maryland already has passed a law forbidding employers from asking job candidates for their passwords to Facebook and other social media sites, and California is considering a similar law. 01fgSCREEN2.jpg View full size · The Society for …

Social Media in the Workplace – July 2012
JD Supra (press release)

With an understanding of some of the relevant issues, employers can implement meaningful and reasonable policies and guidelines for employees and respond appropriately and legally to social media issues that arise. Below are a few of the discrete issues …

5. Financial Services

Quest IRA, Inc. Develops New Interactive Website & Social Media Campaign
Equities.com

The trick for us is trying to provide legally correct information, in such a way that is easy to understand, to the American public so that investors truly understand their options with retirement savings.” “Internet, the online experience and social media are the 21st Century.”

The New Social Metrics
Bank Technology News

Below are methodologies and metrics for determining the ROI of these specific social media use cases. The metrics roll up to three major categories of benefits: revenue impact, operational efficiencies, and legal and compliance risk avoidance.

David M. Adler, Esq. is an attorney, author, educator, entrepreneur and partner with Leavens, Strand, Glover & Adler, LLC, a boutique law firm in Chicago, Illinois created with a specific mission: provide businesses with a competitive advantage by enabling them to leverage their intangible assets and creative content in order to drive innovation and increase overall business value.

We meet this challenge by providing legal counsel on issues related to creation, protection and commercialization of intangible assets, our comprehensive understating of the relevant law, our team of seasoned professionals and our client service philosophy.

REGULATORY COMPLIANCE
17a-4 llc Provides Free Social Media Capture Service
Virtual-Strategy Magazine

By using a hosted version of 17a-4’s DataParser for Social Media schools, financial institutions, government agencies and other regulated institutions can now avail themselves of this free option to capture social media public profiles and other web content into their email archive. (PRWEB) July 24, 2012 … Most regulated institutions have archival systems in place to support the monitoring of textual content, the retention of the data, and the facilities to run legal holds and e-Discovery productions.

SOCIAL MEDIA E-DISCOVERY
Personal Injury Attorney Social Media Marketing Program Offered by Social Media

July 22, 2012 – Social media agency Maximize Social Media LLC announced its social media marketing program today for personal injury attorneys, providing needed support to law firms nationwide.

Mid-Year Report: Legal Cases Involving Social Media Rapidly
As part of our ongoing effort to monitor legal developments concerning social media evidence, we again searched online legal databases of state and federal agencies.

HOT TOPICS IN AUSTRALIAN SOCIAL MEDIA & THE LAW
Get a new perspective on social media
Dynamic Business

Join us after work on 1 August at the Vibe Hotel in Sydney’s Milsons Point to hear from super connector Iggy Pintado, Switched On Media’s head of social media Hannah Law, and Amelia Zaina, director of Small Business Services at American Express.

YOUTH LEADERSHIP IN SOCIAL MEDIA
The So-Called Arrogance of Gen Y Social Media Managers
Business Insider

So if she had just toned it down a bit, perhaps suggesting that younger people shouldn’t be ruled out for their youth, or that age and experience are different qualifiers in the context of social media, I might actually agree with her. What I believe, firmly, is that the 25-year-old should not be excluded from leadership.

SOCIAL MEDIA USE BY LAW ENFORCEMENT
LAwS Communications Announces ConnectedCOPS Awards Finalists
PR Web (press release)

Quote start The ConnectedCOPS Awards were created with the intent of recognizing the great work being done with social media in six categories, by individual sworn officers and law enforcement agencies.

Officer’s Facebook post sparks uproar
Detroit Free Press

A 2011 survey of 800 law-enforcement agencies conducted by the International Association of Chiefs of Police found that 88 percent of the agencies used social media, mostly for investigations. Almost half of those agencies have a social media policy.

Role of Social Media in Law Enforcement Significant – LexisNexis

LexisNexis® Risk Solutions today announced the results of a comprehensive survey focused on the impact of social media on law enforcement.

SOCIAL MEDIA AND CYBERSECURITY
Workplace Diversity, Social Media Implications, Cybersecurity
CHICAGO, July 19, 2012 — Ensuring a diverse and inclusive workplace, the implications of social media on law practice and privacy, cybersecurity, and access.

Newsmakers Q&A | Law slow to address workers’ social-media privacy
Columbus Dispatch

Colorado shooting: Public calls on Christian Bale to swoop in
Los Angeles Times

July 21, 2012, 12:04 p.m.. People are calling upon the caped crusader in the wake of the Colorado theater shooting with the 21st century bat signal: social media.

Afghan social media war steps up with new campaign
Reuters UK

And with the government mulling a media law to tighten its grip over the fledgling but lively Afghan press corps, Nai hoped social media could help safeguard political and social freedoms, as occurred during the wave of uprisings across the Middle East.

A social media win on merger
Philadelphia Inquirer

It’s a bracing lesson, on a local stage, in the power of social media to create community around an issue and ratchet up pressure on key players – in this case, the members of the Abington board and its president and CEO, Laurence Merlis. “It’s amazing to me just how fast word spread,” …. A community-conscious and activist community, with a high concentration of concerned, committed people who work in industries such as law, medicine, public relations, and journalism.

Valley reacts via social media regarding Colorado shooting
KGBT-TV

Once new information began streaming in about the shooting, over 100 viewers began responding to the Action 4 News Facebook page and Twitter feed. As the day progressed, over 500 comments came into valleycentral.com andAction 4 social media

Media Wise Parents to the rescue
Windsor This Week
Media Wise Parents helps parents, educators and churches become more aware with social media and the internet. Tweet · Bookmark and … It’s certainly in my background with law and marketing, it’s always something that interests me.

We Want To Hear From You: Take This Two-Minute Social Media Survey
Business Insider

This Is The Gun Used In The Colorado Shooting That Everyone Can’t Believe Is Actually Legal

In Focus: Social Media & Law Enforcement

Busted! Police Turn to Social Media to Fight Crime
CNBC.com (blog)

Law enforcement is taking to social media because criminals are changing their behavior and using social media to facilitate crime. In response, law enforcement officials are using it to track down criminals and as a predictive policing tool, said Haywood.

Role of Social Media in Law Enforcement Significant and Growing
Business Wire (press release)

WASHINGTON–(BUSINESS WIRE)–LexisNexis® Risk Solutions today announced the results of a comprehensive survey focused on the impact of social media on law enforcement in criminal investigations.

Police Make Wide Use Of Social Tools
InformationWeek (blog)

The survey, of more than 1200 law enforcement professionals with federal, state, and local agencies, found that 83% of the respondents are using social media, particularly Facebook and YouTube, to further their investigations.

Crime Busters Embrace Social Media
BusinessNewsDaily

It’s not just prospective customers, partners or employers who may be scanning the social media landscape to glean information about you and your organization. The long arm of the law has joined the party as well, a new survey shows.

How Law Enforcement Is Using Social Media (Infographic)
Law enforcement officials are using social media to solve crimes and will continue to do so in greater numbers. In an online survey conducted by LexisNexis Risk Solutions, four out of five law enforcement officials used social media.

Mobile carriers, app developers, and other technology stakeholders will meet with the U.S. National Telecommunications and Information Agency on July 12 to discuss privacy standards for mobile use. The focus of the discussion will be the privacy practices of mobile apps and their transparency.

Applications will be the main focus on July 12 when enforcement begins. The initial series of meetings will decide on rights, obligations and enforcement of online and mobile device security under President Obama’s virtual “Privacy Bill of Rights”.

The U.S. Department of Commerce’s National Communications and Telecommunication Administration (NTIA) has made the decision that it is now time to put the president’s Privacy Bill of Rights into effect. In order to get started, they have sent an invitation to all of the “privacy stakeholders” in order to “generate robust input” in the creation of the very first transparency code of conduct for consumer data collection and use.

The White House and Congress hopes that this discussion will eventually lead to a privacy bill of rights. July’s meeting will be webcast for the public.

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