Social Media Policies for Fashion Companies and Clothing Labels

In fashion, innovation never goes out of style. Therefore, it is no surprise that fashion houses and clothing brandsmarket across many different

Fashion (film)
Fashion (film) (Photo credit: Wikipedia)

social media platforms. It is axiomatic that fashion marketing requires a deep understanding of the target audience, regardless of whether that knowledge comes from online or offline interaction. Social media provides a forum for a more authentic, transparent and personal engagement with the customer, but also highlights whether a brand has judged (or misjudged) its customer base.

To be successful in social media, brands need to harness the personality, wit, charm and, in all likelihood, free time of their staff. In order to ensure positive, informative and engaging social interaction, a fashion brand’s social media rules must be smart, positive and inclusive. Here are some guidelines for drafting a social media policy that will bring out the best in your brand, your employees (brand ambassadors) and your customers.

Rather than writing out a lengthy, legal boilerplate script, keep these considerations in mind when drafting your policy:

  • Philosophy. Begin with a discussion of how social media fits into an employee’s job expectations and performance. For example, guidelines are important, because if not followed “bad things” can happen, such as losing customers or vendors, the company could get into legal trouble, or worse, you could lose your job.
  • Behavioral Expectations. This is a good place to remind employees that even though it’s a big world, you are often in a small community and, on the Internet, it’s forever. What a person says can be seen by customers and employees all over the world.  Remind employees to stick to their areas of expertise and use respectful conduct. Other watch words include “timeliness” (posts should be fresh, current and relevant), “perspective” (something that may sound clever and racy to one person may be inaccurate or offensive to another), “transparency” (be the first to point out that you are an employee and make it clear that you are not a company spokesperson) and  “judiciousness” (use caution when discussing things where emotional topics like politics and religion and show respect for others’ opinions).
  • Channel expectations. If your company has a social media strategy, make sure employees know which sites (communication channels) are appropriate for which types of communications and marketing messages.
  • Contextual Expectations. Help employees understand the context within which they are engaging customers. Suggest using a conversational style. Remember that in customer’s eyes, “perception is reality.” Add value: Make sure your posts really add to the conversation. If they promote the company’s goals and values, supports the customers, improves or helps to sell products, or helps to do jobs better, then you are adding value.
  • Content Expectations. The policy must have clear and conspicuous language about what is considered company proprietary information, including current projects, trademarks, names, logos  and how they may be used. Never: (i)  discuss or post about financial information, sales trends, strategies, forecasts, legal issues and future promotional activities; (ii) post confidential or non-public information about the company; (iii) give out personal information about customers or employees; or (iv)  respond to an offensive or negative post by a customer.
  • Consequences. Lastly, be upfront about the very real consequences if mistakes are made. If a mistake occurs, correct it immediately and be clear about what’s been done to fix it. Contact the social media team if there’s a lesson to be learned.

Search Keywords & Trademark Rights: Where is the Balance?

Fourth Circuit Court of Appeals Reverses Summary Judgment for Google in Rosetta Stone’s AdWordsLawsuit

Image representing Google as depicted in Crunc...
Image via CrunchBase

For Trademark lawyers and brand owners, Google’s AdWords program has engendered no small amount of debate. Many companies have tried, unsuccessfully, to hold Google liable for keyword advertising triggered when a brand-owner’s competitor buys keyword advertisements under the AdWords program by purchasing the brand-owner’s trademarks as keywords. Rosetta Stone’s lawsuit is no different.

However, what is different this time is that Google will have to defend at trial its program of selling companies’ well-known trademarks to the highest bidder. In the widely watched ruling, the Court reinstated most of Rosetta Stone’s claims relating to infringement and dilution.

On the claim of direct trademark infringement, the Court found that there was evidence in the record to create a question of fact as to whether “a reasonable trier of fact could find that Google intended to cause confusion in that it acted with the knowledge that confusion was very likely to result.” Google’s own internal studies suggested that it was likely confusion would result from the use of third-party trademarks.

On the claim of  contributory infringement, the appeals court stated that the district court had improperly shifted the burden from Google to Rosetta Stone on the issue of whether Google allowed known infringers and counterfeiters to bid on Rosetta Stone’s trademarks as keywords

On the claim of trademark dilution, the appellate court reversed the district courts approval of Google’s “fair use” defense finding that the district court had not addressed Google’s good faith, and wrongly placed the burden of proof on Rosetta Stone, when the it was Google that was the party asserting fair use as  a defense.

Lastly, the appeals court addressed the functionality doctrine which is the use of a product design considered necessary by the nature of the product itself. Such aspects of the product design are not protectable and others are free to use it.  The court of appeals stated “[t]he functionality doctrine simply does not apply in these circumstances,” since Rosetta Stone’s trademarks were not a “functional” feature of its software.

You can read the opinion here.

Social Media World Legal News Roundup

The legal and regulatory environment impacting social media is constantly evolving. Here is a collection of recent articles impacting everything from law enforcement use of social media to new legislation.

A social media tip line for police
Boston.com
“Use of social media has provided an additional outlet for people to interact with law enforcement” says Lauri Stevens – founder of LAwS Communications, a consulting company that helps law enforcement agencies expand into social media.

Social media limits and the law
Monterey County Herald
Leland Yee, a San Francisco Democrat, introduced a bill that would prohibit employers, public or private, from requiring or requesting in writing a prospective employee to disclose user names or passwords for personal social media accounts.

Ariz. bill says unlawful to ‘annoy’ others online
BusinessWeek
“Speaking to annoy or offend is not a crime,” Media Coalition Executive Director David Horowitz said. Horowitz said if the proposal becomes law, speech done in satire, political debate or even sports trash talking could get people in unnecessary legal trouble.

Social Media in China, Innovation
Washington Post
Apr. 2, 2012 – April 2 (Bloomberg) — Vivek Wadhwa, fellow at Stanford Law School and head of academics at Singularity University, talks about social media in China and innovation.

UAE legal experts want libel to apply to social networking sites
GMA News
Claiming that Facebook, Twitter and other social networking sites can be used to spread rumors and false information, the legal community in the United Arab Emirates (UAE) is seeking that libel laws be applied to offenders on the Internet.

Is Your Facebook Password Like Your Mail, House Key, or Drug Test?
The Atlantic
A day after it was proposed, the amendment was voted down — almost entirely along party lines — thus closing one door to social media privacy legislation, at least on the national level. (There are similar social media privacy laws — full bills, …

Sponsor: Arizona bill isn’t aimed at Internet trolls
CNN
The fear is that the bill would prohibit hateful comments on news and social-media sites, amounting to a ban on so-called Internet trolling. The problem: The bill won’t do any of that, its sponsor told CNN on Wednesday. “I think they’re absolutely …

How Family Law Attorneys Use Social Media Evidence [Infographic]
PR Web (press release)
Family Law Attorneys Dishon & Block formally released today an infographic that illustrates how attorneys use social media to collect “smoking gun” evidence for divorce and child custody cases. With the advancement in technology and modernizing of laws …
See all stories on this topic »
PR Web (press release)

David M. Adler Speaking on Social Media Legal Issues for Marketers at CONVERGE Spring Symposium 2012

Icon of Law Firm--owned by user.
Icon of Law Firm--owned by user. (Photo credit: Wikipedia)

Attorney David M. Adler will be speaking as part of a legal panel on “legal landmines”, e.g. legal risks and regulatory compliance, in social and mobile marketing as part of the CONVERGE Spring Symposium 2012 taking place in Silicon Valley, May 1-2, 2012.

Topics to be addressed include best practices for direct, digital and mobile marketing including advising on permission-based marketing, emerging technologies, the use of various social media platforms, as well as data security and privacy issues related to electronic and mobile commerce.

New FTC guidelines in the areas of advertising any marketing, as well as consumer privacy and security, have raised awareness of these issues for brands, marketing firms and service providers.

David M. Adler, Esq. is an attorney, author, educator, entrepreneur and nationally-recognized speaker in the fields of intellectual property, media & entertainment and technology law with a multidisciplinary practice focused on counseling businesses across the interrelated areas of Intellectual Property Law, Media & Entertainment, Information Technology and Corporate Law. David provides legal counsel on trademark and copyright clearance, registration and enforcement, digital and new media licensing, production, finance, regulations, Social Media, litigation and corporate-commercial transactions.

David has an extensive private-practice and in-house background counseling clients on marketing, advertising and content deals, lead-generation agreements, referral agreements, advertising-supported revenue deals, product placement, affiliate marketing/group-couponing platforms, CAN-SPAM compliance, digital rights management for video, music, and games. We work with many of the leading studios, labels, social networking sites, and online music companies. He also specializes in advising artistic talent and creative professionals in the arts, entertainment, media and sports industries.

Privacy News Trends Now

White House: Put teeth into online privacy Bill of Rights

GCN.com

By William Jackson

A White House official says that the administration will call on Congress to pass legislation to put the force of law behind a proposed Consumer Privacy Bill of Rights. The administration unveiled the principles in February.

The dangerous nexus of privacy, liberty and government

Atlanta Journal Constitution (blog)

In the long run, will changing expectations of privacy in an electronic world begun to undermine the constitutional protections granted to all Americans in the Bill of Rights?

Consumer Watchdog Calls on Commerce Department to Offer Privacy Legislation

Sacramento Bee

The test of commitment is to translate high-minded principles like the Consumer Privacy Bill of Rights into real legislative language.” The White House issued its privacy proposal, Consumer Data Privacy in a Networked World.

This Is Your Brain on the Department of Defense

Mother Jones

“Some have argued that we’ll need something new—that the existing Bill of Rights doesn’t protect mental privacy adequately enough in the face of these emerging technologies.”

White House Official: Privacy Legislation Would Protect Businesses, Consumers

National Journal

The White House and the Federal Trade Commission, for example, have both released proposals that call for Congress to enact new legislation outlining consumer privacy rights.

FTC Seeks Law to Expose Data Broker Holdings

Business 2 Community

It did get a bit of spotlight, but when President Obama recently proposed a “Consumer Privacy Bill of Rights”, as not just Americans, but consumers and consistent users of technology, we definitely should’ve taken greater notice.

About that SCOTUS strip search ruling

Hot Air

Well, he’s certainly quoted the Bill of Rights accurately, as we should expect. But sometimes I think things can be oversimplified. This is a complex question, but I think Joyner’s argument may come up short both on the particulars of the Florence case.

Do Not Track Supported By Yahoo Web Analytics

WebProNews

Also last week, the Federal Trade Commission issued its final report for how companies should handle consumer privacy, which includes the aforementioned Do Not Track feature. This had previously been mentioned in the Consumer Privacy Bill of Rights.

FTC Seeking Law to Reveal Data Broker Holdings

Caribbean Media Vision

This call for legislation comes a month after the Obama administration outlined their “Consumer Privacy Bill of Rights” a document that details a high expectation of transparency on the part of corporations and their data mining efforts.

US Supreme Court sanctions strip searches even for minor infractions

World Socialist Web Site

by the so-called “swing” member of the court, Justice Anthony Kennedy, and joined by the four-member right-wing bloc, is the latest in a series of reactionary rulings broadening the police powers of the state and trampling on the Bill of Rights.

David Adler to Speak on Legal Issues In The Life Cycle of Theatrical Production

David M Adler, noted entertainment and creatival arts lawyer will be participating in the Visiting Artist Series with Reginald Lawrence (Shepsu Aakhu).

Tuesday, April 10, 2012 11:50 – 1:30 pm
DePaul Center – Room 80051 E. Jackson Blvd.Chicago, IL 60604
Lunch will be served.

Visiting Artist Reginald Lawrence (Shepsu Aakhu) will discuss the legal issues that he has faced in his multi-dimensional career as a playwright, producer, director, and arts educator.  In particular, he will focus on the life cycle of a theatrical production from dealing with authors to hiring actors, directors, and crew to mounting the finished production.  He will share his perspective on legal questions related to collaboration, intellectual property, and production credit.
Leading Chicago arts lawyer David Adler will join in the conversation, and Professor Margit Livingston will moderate.
For more information on the Visiting Artist Series, please click here.

Registration: General registration is $25 for the 1.5 hour CLE discussion.  To register, please visit http://www.regonline.com/reginaldlawrence.
DePaul students, faculty, and staff can register to attend for free by emailing Cecelia Story at cstory@depaul.edu.

DePaul University College of Law is an accredited CLE provider. This event has been approved for 1.5 CLE credits.

 

FTC Releases Final Report With Privacy Recommendations

  • Calls for voluntary online Do Not Track system
  • Calls on Congress to pass general privacy legislation
  • White House has called for privacy bill of rights

In 2011, the Federal Trade Commission slapped Google and Facebook for violating their own privacy policies, forcing both to submit to years of privacy audits. In February, 2012 , the Obama administration issued a blueprint for a “Consumer Privacy Bill of Rights.” The FTC, the main government agency responsible for protecting privacy, called Monday for legislation that would give consumers access to information collected about them by data brokers similar to the rights they now have to review information amassed by credit reporting agencies.

The FTC’s report comes a little over a month after the White House released its privacy bill of rights that called on companies to be more transparent about privacy and grant consumers greater access to their data but that stopped short of backing an explicit “do not track” rule. The Federal Trade Commission’s 57-page privacy report consisted of a set of “best practices” that the Internet industry is expected to follow — or face sanctions. The report mirrors many of the provisions of the “Consumer Privacy Bill of Rights” released by the White House and represents the first serious efforts at striking a balance in online consumer privacy protection related to web usage.

Critics contend the framework is not as extensive as the White House Consumer Privacy Bill of Rights announced back in February. That already made provision for “Do Not Track” technology, with Google, Yahoo!, Microsoft and AOL – together responsible for almost 90-percent of behavioral advertising – already opting in. Privacy advocates have slammed the new” guidelines, arguing that the proposed system for ensuring online data security fails to take advantage of existing authority and relies too much on self-regulation of the online industry. The new framework “mistakenly endorses self-regulation and ‘notice and choice,’” the Electronic Privacy Information Center claims, ”and fails to explain why it has not used its current Section 5 authority to better safeguard the interests of consumers.”

Seven Basic Smartphone Privacy Tips To Minimize Data Sharing Risks

US consumers are waking up to privacy issues related to smartphone use. About two-thirds of search engine users disapprove of the collection of information on their searches for the purpose of personalizing their future search results and an equal proportion of all internet users disapprove of being tracked for the purpose of getting targeted ads.

Interestingly, the two most popular smartphone platforms treat application data gathering differently. While Apple reviews prospective applications before launching them into its iPhone app store, Google’s open-source Android platform has no such system in place. But while the Android system runs each application separately and explicitly lists the services or data each application accesses, Apple’s iPhone system treats all applications as equal and allows them to access many resources by default.

Until application developers and hardware makers start taking Privacy-By Design” seriously, users must pro-actively protect their privacy. If you have a smartphone and use it to download apps, there’s little you can do to completely lock down your personal information. But there are a number of precautions you can take to ensure minimal risk exposure.

So, here are seven basic basic smartphone privacy tips you can take to cut down on risks:

  1. Don’t download apps form unknown sources. If you have not heard of an app, read its user reviews. Even better, look it up online and see what has been said about it.
  2. When possible, opt out of information sharing capabilities.
  3. Get acquainted with your phone’s GPS features. Most smartphones allow one to adjust which applications have access to GPS. Turn this feature off for all but the most essential of apps.
  4. On Android: Before you download an app, check its user permissions. This should give you a breakdown of what information the app will access. Ask yourself if a simple game apps really needs to access the contact list?
  5. For Android: If you’ve opted to “root” (obtain privileged access) your device, be wary of granting apps root access. Doing so grants them complete control over your phone.
  6. For iPhone: If you have “jailbroken” (circumvented the proprietary programming restrixtions) your phone, be sure to change its root password. You can find guides online, or else get a trusted technician to do so for you.
  7. If you are no longer using an app, uninstall it.

While there is no easy way to figure out which apps are the riskiest, paid apps tend to pass less data on than free ones. Remember, “free” content is usually monetized in other ways, most often by selling user data.

Your Money or Your Life: Mobile Marketing & Privacy (Part 1 of 3)

Free content is not without a cost.

As our lives have become more digitally enmeshed with content, immersive entertainment and devices, the economic bargain that makes it possible has gone largely unnoticed. Simply put, the collection, analysis and sharing of personal data is driving the digital economy. Mobile applications (Apps), digital content and entertainment – from TV shows to games – are available for “free” but subsidized by income from online ads that are customized using data about customers. Vendors, advertisers and platforms compete for “eyeballs” based, in part, on the quality of the information they possess about users to whom the ads are targeted.

Across this interconnected landscape of users, content providers and devices, the issue of online privacy has become a major talking point for app developers, marketers, consumers and legislators. Recently, a wide range of stakeholders, from large institutions to smaller developers, have been accused of mishandling personal data. As the volume of public debate has increased, legislators have introduced a raft privacy initiatives. The Obama administration has called for a Privacy Bill of Rights, an industry consortium of leading web sites and search engines has proposed its own privacy best practices and the Electronic Frontier Foundation has published a consumer-oriented Mobile User Privacy Bill of Rights.

Part 1 of this article looks at several recent and high-profile revelations about how personal information is collected and used, often without the user’s knowledge and consent. Part 2 discusses the legal risks faced by vendors that don’t take adequate precautions to protect consumer privacy and Part 3 concludes with strategies and tactics that help leverage the power of personalization while avoiding the pitfalls of privacy and data security.

1. The current state of information gathering

The scope of personal information gathered is unprecedented and largely unknown. For years, “free” web-based content has been available because of the implicit compromise between content providers and content consumers. Advances in technology have made it easier to track a user’s web browsing habits, mobile browsing habits, and even real-time geospatial location (check in apps and GPS). In the last few months, we have learned that some apps not only gather this mostly non-personally-identifiable data, but also upload a user’s address book contacts and even photos.

On Wednesday Feb. 2012, software Developer Arun Thampi “outed” Path, the purveyor of a self-titled journaling app, for sending users’ address book contents to the company. Path lets users share what they’re doing with a select group of friends and gives users the option to find friends on the app through contacts or other social networks. Thampi disclosed the clandestine data transfer in a blog post after discovering that his phone’s entire address book, including full names and e-mail addresses, was being sent to Path without his explicit consent. According to Path, this data was necessary to in order to quickly notify users when people they know join Path.

Not too long ago, Google earned itself a similar PR (and legal) black eye when it launched its social network, Google Buzz, in 2010 through its Gmail web-based email product. At launch, users were not informed that the identity of individuals they emailed most frequently would be made public by default. Google Buzz automatically disclosed the email addresses of a user’s contacts by default. Google settled with the FTC over allegations that Google used deceptive practices and violated its own privacy policies.

On Feb 17 2012, WSJ reported that Google Inc. and other advertising companies have been bypassing the privacy settings of millions of people using Apple Inc.’s Web browser on their iPhones and computers—tracking the Web-browsing habits of people who intended for that kind of monitoring to be blocked. The companies used special computer code that tricks Apple’s Safari Web-browsing software into letting them monitor many users. Safari, the most widely used browser on mobile devices, is designed to block such tracking by default.

A major topic for discussion just this week is the “Target Snafu.” As originally reported in the New York Times, Target used customer data and predictive analytics to determine that one of their customers was pregnant, and even her specific trimester. The girl’s father learned of the pregnancy when the retailer emailed her promotional material and coupons.

It used to take days or even weeks to gather, synthesize and extrapolate data about a customer’s buying habits and receptiveness to particular products or services. Now it takes milliseconds. A targeted ad can be sourced and served in the time it takes to hit “refresh” on a web browser. Companies are using massive amounts of data to predict what their customers are going to want next. More importantly, gathering that data is getting easier, cheaper and more ubiquitous as the source of that data moves from the desktop to mobile devices.

So where is the middle ground between privacy and targeted advertising? Is it spying simply because the user doesn’t know what data is being collected even though the user accepted a broad and ambiguous Terms of Use agreement? Is knowingly contributing data without boundaries sufficiently transparent?

Lawyers Top 10 Tricks for Managing Intellectual Property

Official seal of the USPTO
Image via Wikipedia

Get the handout here!

Intellectual property is often the most significant driver of value among a company’s assets. Therefore, it is increasingly important for companies to actively manage their intellectual property assets to identify, categorize, register and enforce IP assets while minimizing the possibility of legal disputes.

Whether acquiring technology, developing new products or taking stock of the company’s intangible assets, companies must develop ways to protect their assets better, determine ways to realize more revenue from such assets, and reduce risks of costly litigation.

Below are ten intellectual property management tips that will help Companies and their counsel identify and protect IP assets and address infringement issues, among other key steps.

1. Identify: Simply put, think about what patents, trademarks and copyrights you might have and categorize them appropriately. This includes ideas in development.

2. Organize: Once categorized, review the relevant creation and publication/use dates. Determine registration status. File necessary maintenance documents as appropriate and create calendar/docket future due dates for supplemental filings.

3. Monitor: Review the USPTO and Copyright office databases periodically to ensure no junior users may weaken your rights.

4. Conduct a USPTO “Basic Search”: Start your search here. Individual results pages will include direct links to the mark’s records in TARR (best way to check current status of application/mark), ASSIGN (best way to see if the mark has been assigned), TDR (best way to retrieve relevant documents), TTAB (search and review board proceedings).

5. Conduct a USPTO Document Search: Use this database to determine existence of and locate documents related to specific applications.

6. Conduct a Copyright.gov Search: This is the best place to start with any copyright related questions. Includes searched for copies of registered works.

7. Google- search: Great secondary, broad-stroke search. Tends to return higher percentage of irrelevant results, but good at finding that needle-in-a-haystack type rip-off/con artist.

8. Create Google alerts: Use these to stay abreast of relevant changes in the database. Narrow alert criteria to specific keywords/phrases.

9. Conduct a State Trademark Databases Search: Don’t forget your own back yard. Search state databases for d/b/as, etc. (IL=cyberdriveillinois.com).

10. Ask you lawyer about specific concerns. Every situation is different and the only way to properly asses the risks/costs of any course of action is to discuss your matter with a competent attorney who practices in this area.

©2012 David M. Adler, Esq. All Rights Reserved.