Thursday, April 26, 2012

LinkedIn, Twitter and Facebook Accounts Redux

There appears to be an increasing amount of litigation over an employee's social media account for the company.  In an earlier blog post, I discussed the case of PhoneDog v. Noah Kravitz.  Another case involves custody over a LinkedIn account.  Edcomm (employer) and Linda Eagle (former employee) are suing over who owns the Ms. Eagle's LinkedIn account.  As with the Kravitz case, the employer is arguing that the "connections" are trade secrets.  The court was not persuaded by this argument, but the lawsuit is ongoing.

Again, it behooves a company to put in place policies regarding an employee's use of and creation of these social media accounts on behalf of the company.  The clearer the policy the more likely that the matter can resolve without resort to litigation.

Friday, April 13, 2012

Employment and Personal Gadgets and Social Network Accounts

Employees are using their personal smartphones and tablets for work more and more.  While this allows the employee to stay connected to work, even during "off hours," it can cause some issues if the gadgets are not properly secured.  Those gadgets are prime targets for hackers seeking to access business data or confidential/trade secret information. 

So, what do employers do? Well, as of now, there is a range of ways employers handle the situation.  They either ban all personal gadgets for work use, require that the employee allow the employer remote access to the gadgets in order to allow the employer to wipe it clean, or do nothing (because they are not sure what to do). 

What should employers do?  This is a difficult question because it not only raises privacy and confidentiality issues, but it also implicates issues involving the need to allow a third party suing the company access to the employee's personal devices and questions about who owns the e-mail, work twitter account, or work facebook account, etc.  Allowing employees to use personal gadgets rather than employer issued (and paid for) ones saves companies substantial costs.  Not to mention that employees do not want to tote around two phones, two laptops, or two tablets (one work issued and one personal).  Of course, the use of a personal gadget for work means that the employee will also access personal social media sites and others which are targeted by hackers. 

An employer must be creative in dealing with these issues in order to protect its trade secret information.  It may be as simple as requiring the employee to allow the company to install protections on the gadget.  Or, to further limit access to information from a smartphone or tablet.  Each company should research how their employees are using their personal gadgets for work and how to best protect the company's information.  As with most trade secret/confidential information protection schemes, there really is no one size fits all solution. 

Tuesday, April 10, 2012

Pinterest And Copyright Infringement

One would think that after the Napster ordeal, the explosion of the internet, and the constant reminders about copyright and trademark infringement issues with regard to the use of images and logos from another's website, that a company like Pinterest would have been better at anticipating the problem with having people "pin" items to their site.  For those of you who do not know, Pinterest is an electronic scrapbook wherein users "pin" images the website.

At first, Pinterest did nothing to help stave off the infringement that would undoubtedly occur when it encouraged people to "pin" images to the site.  It took a user of the site to blog about why she removed the images she pinned--the user is both a photographer and an attorney.  The blog apparently went viral and spurred Pinterest to contact her in order to begin the process of putting in place a policy to avoid the obvious legal issues. 

Yes, the copyright law may be a bit behind the technology, but it caught up with Napster and it will catch up with Pinterest.  It is simply hard to believe that an internet startup company would not consider the legal implications of encouraging people to post photos found on other sites.  Very disappointing to say the least. 

Nevertheless, it now appears that Pinterest is trying to do what it should have done in the first place. That is good especially given that Pinterest is growing quickly.  Hopefully, they will get some solid legal advice on what to do and protect "pinners" and copyright owners. 

Friday, April 6, 2012

Another College Football Trademark Dispute

About two years ago, the University of Southern California asserted its rights to use "USC" against University of South Carolina who wanted to use the those letters on its athletic uniforms.  Southern California prevailed and South Carolina cannot use those letters even though those letters are the initials of the school.

Now, the University of Alabama has been in a long battle with an artist named Daniel Moore.  Mr. Moore is an artist in Alabama who depicts scenes from the University of Alabama football games. The dispute revolves around Mr. Moore's use of Alabama's Crimson and White colors.  The Crimson Tide have spent an enormous amount of money in legal expenses against Mr. Moore.  Mr. Moore won the first round in the District Court which ruled that he had a First Amendment right to paint the scenes, but it did not allow him to use his paintings in other mediums (i.e. mugs, t-shirts, etc.).

Both sides appealed and are now awaiting a ruling from the 11th Circuit Court of Appeal.  This is not the first time that a District Court of Appeal had to decide an intellectual property issue between an artist and a sports team/person.  In 2003, Tiger Woods sued an artist to prevent him from selling prints derived from his painting of Tiger Woods winning the 1997 Masters.  That court, the 6th Circuit, essentially held that the First Amendment trumped Mr. Woods intellectual property rights.

Interestingly, Bear Bryant asked Mr. Moore to commemorate Mr. Bryant's bypassing the record of Amos Alonzo Stagg for coaching victories.  Several of Mr. Moore's paintings are on display at the Paul W. Bryant Museum on Alabama's campus.  Clearly, Mr. Moore is not only an artist, but he is a fan.

So, what is going on here?  Big money is.  College football has become such a huge moneymaker that the teams are doing everything they can to capitalize on and control the use of their logos, image, and colors. Should the 11th Circuit side with the Tide, it could lead to a chilling of news or magazine reporting of Colleges or games.  Could a newspaper print a photo from the game when reporting on the team?  Maybe not.  That seems like it would be gutting the First Amendment in favor of intellectual property rights.  Stay tuned. 

Tuesday, April 3, 2012

Amazingly, Lululemon Turned Yoga Apparel Into a Must Have Item

For various reasons, none of which really have to do with the quality of the product, I am not a huge fan of Lululemon ("Lulu") wear.  I prefer Lucy.  But, judging from the the Lulu to Lucy ratio at my gym alone, I think Lulu is the apparel of choice.  According to a recent Wall Street Journal article, Lulu has been growing at an exponential pace--posting nine quarters of a 30% increase in sales over the past three years.  Also, according to the article, Lulu does not use conventional marketing techniques to increase demand for its products.  Instead, Lulu uses good ol' fashion customer contact to create an aura of scarcity of their products in order to encourage the customers to keep their products flying off the shelves. Lulu's Chief Executive spends hours in stores observing customers, listening to their complaints and suggestions and using that information to change products or stores.

In addition, Lulu places its product folding areas near the fitting rooms in order to eavesdrop on customers and Lulu has a has a large chalkboard for customers to write their complaints.  The complaints are then relayed to headquarters. 

Lulu execs thing that the company's growth will slow down due to the fact that the brand grew so fast--at some point, it has to slow down.  However, in its most recent quarter growth softened from 29-16% which is still above the norms of the industry.  Lulu creates a sense of scarcity for products in order to sell its product at full price.  New colors and seasonal items can expect to be in a store only 3-12 weeks in order to keep the stores "fresh."  The constant changeover also keeps Lulu customers coming back often to get the "latest and greatest."  Moreover, Lulu has a very strict return policy.  They definitely are not Nordstrom in that regard.