Quick Tip: Consider Foreign Trademark Rights Early

  1. U.S. trademark owners should conduct trademark searches both domestic and international markets that are of potential significance, even if the foreign search is merely a “knock-out” search for identical marks; and
  2. U.S. trademark owners should develop and implement strategies for global trademark protection sooner, rather than later.

International searching and registration are costly and often forgotten when small businesses develop and intellectual property strategy. Being proactive and paying for this search early can prevent the cost to either defend an infringement suit or change branding in an entire geographic region.  With some forethought it is possible to spread the costs of searching and registration over several months or years.  Do not underestimate the growth potential of your brand.

 

Two recent cases illustrate the importance of this kind of forethought:

The Glee Case and the Pintrest Case.

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Before You Start Crowdfunding, Know the IP Concerns!

http://www.hongkiat.com/blog/crowdfunding-sites/
http://www.hongkiat.com/blog/crowdfunding-sites/

Crowdfunding has become a major financing tool for small businesses from tech start ups to small services companies. This source of funding, made available by The 2012 Jumpstart Our Business Startup Act (JOBS Act) which enables small businesses to raise funds from non-accredited investors.  An accredited investor must meet a personal net worth or income test that excludes the majority of the population. There are still rules about how much each person can invest for equity crowdfunding but Title III truly opens up the ability for the average American to invest.

If you are considering a crowdfunding platform for your new venture, or if you are contemplating investing in a crowd-funded project, attention to intellectual property protection is critical.  Often, companies considering crowdfunding are in the early stages of development and owners may not have the appropriate intellectual property (IP) protections in place yet. Here are a few things to consider about each of the major types of intellectual property:

Trademarks:
Securing federal and/or international trademark protection is an important early step to establishing a company and launching a brand.  This, however, can be hard to do or forgotten prior to using the mark in commerce, the standard set by the USPTO. Therefore, posting a project with a proposed trademarkcould serves as an open invitation for trademark infringers in the U.S. and abroad to file for registration first.  The same is true with respect to domain name registrations.  Additionally, without the proper research you could inadvertently launch a brand with a trademark already in use. This is not only bad PR but could open you up to suit before you’ve even begun.Action Items: Do a thorough search on potential marks and make sure it does not conflict with state, federal or international trademarks. Consider filing an Intent to Use trademark application if you are not at the place to file a trademark application based on use. Consult an attorney to make an informed decision based on a thorough search and knowledge of requirements for proving use such that you can file a trademark based on use.

Copyrights:
Although filing is not required to benefit from copyright protection, it is a prerequisite for a U.S. copyright owner who wishes to file suit for infringement in the U.S. If you are going to post copyrighted works in connection with your project disclosure or business plan, and if those works integral to the success of the project or business make sure you protect them. Additionally, make sure if you use the copyrighted work of others in your proposal you have the proper permissions to avoid copyright infringement.

Action Items: Review your copyrighted work and consider filing for copyright registration if any of the work you will loose is integral to the business.  If you plan to use images, music, or other content from third-party sources in your proposal, be sure to obtain appropriate licensing/permission prior to posting such works publicly.

Patents:
Disclosing the details of an invention before filing a patent application may bar patent protection due to required disclosures or missing the first to file window.  Some crowdfunding sites require projects that involve the manufacture and distribution of “gadgets” to “show as much as they can about how they’re going to make their project, including things like a production plan, an estimated schedule, and any details you can provide for backers.”

Action Items: Preserve your rights, patent applications should be filed as early as possible as required by the America Invents Act, under “first to file”. By filing a patent application prior to disclosing a project, the inventor can preserve patent rights and potentially avoid problems with both the statutory bar and potentially conflicting applications.  While U.S. patent law gives the inventor a year after disclosure in which to file, the same is not true in most of the rest of the world where a prefiling disclosure bars patent protection.  Keep this in mind for projects that will rely on foreign marketing and revenue for their success.

General considerations:

  1. Think about your IP on a local and global scale. Develop a state, federal and international IP development plan. As your brand grows, depending on industry and target market you want to make sure your protections are as robust as possible.
  2. Consult an attorney early and often to help you develop your IP strategy and think through the hurdles associated with crowdfunding.
  3. Investigate services like U.K.-based Creative Barcode. that are designed to provide a provide protection for early stage intellectual property. This is NOT an endorsement of these services but this is an option to consider.

Conclusion
Your intellectual property is one of your biggest assets and the last thing you want to do is damage your IP rights while trying to secure funding through crowdfunding. This is just a high level view of the general issues associated with crowdfunding. Depending on the project, the IP issues could be substantially more complex.

Additionally, potential investors should be worried about these intellectual property issues as well. Potential Investors must conduct a due diligence assessment of any venture they seek to invest in as the success or failure of the idea may hinge, at least in part, on the strength and protection of those IP rights.

Internet Law & Security Updates

So much is happening online that it can be hard to keep up. I have compiled some of the most recent events in Social Media, Internet law & Cybersecurity. Know how these changes affect your privacy and other rights. If you have any questions leave them in the comments!

Social Media

Comments on social media considered and Facebook “Likes” enjoy federal protection. On August 25, the National Labor Relations Board found in Three D, LLC, d/b/a Triple Play Sports Bar and Grille v. Sanzone, Case No. 34-CA-012915, and Three D, LLC, d/b/a Triple Play Sports Bar and Grille v. Spinella, Case No. 34-CA-012926, that an employer had violated federal labor law by terminating an employee who had “liked” a former co-worker’s negative comment about the employer posted on Facebook.  The Board also ruled that the employer violated the National Labor Relations Act (the “Act”) by firing another employee for posting an expletive-laced comment about the employer in response to the former co-worker’s comment, and it found that the employer’s “Internet/Blogging” policy banning “inappropriate discussions” regarding the company unlawfully chilled employees’ exercise of their right to engage in protected, concerted activity under the Act.

BYOD

Reimburse employees for wireless service. A recent California ruling that requires companies to reimburse employees for wireless serviceAlthough the case raised more questions than it answered about what level of reimbursement is required, it seems clear that companies will bear a larger portion of the cost of BYOD programs than they had previously borne.

Security 
According to the New York Times, when one adds the compromised records in Target, PF Chang’s, Neiman Marcus, Sally Beauty, Michaels, UPS and others, the number of affected customers amounts to more than one-third of the U.S. population.

Home Depot the latest victim of security breach. Krebs has reported that it appears that two large dumps of purloined credit card numbers have made an appearance on the black market and that those numbers may have originated at Home Depot locations. Krebs’ reporting is here. This latest incident raises yet another round of concerns about the malware known as “Backoff” and the potential widespread effect on retailers. Home Depot has been hit with a class action lawsuit stemming from a suspected data breach at the home improvement retailer 

Using your cellphone’s gps to stay ahead of fraudsters. In a new effort to use technology to foil credit-card fraud, a company called BillGuard is testing a system that would monitor the precise whereabouts of mobile devices to detect possible payment issues. The tech firm is tracking mobile-phone locations in an attempt to stay one step ahead of fraudsters. Because smartphones are almost always near their owners, the technology would register and flag those occasions when a phone is not near the owner’s credit card. The technology would only be used with the consumer’s consent.

Healthcare.gov Server Hacked.The Department of Health and Human Services disclosed on Sept. 4 that malware had been uploaded on the Obamacare test server back in July. HHS officials say the malware was designed to launch a distributed-denial-of-service attack against other websites when activated and not designed to exfiltrate personally identifiable information. No consumer data was exposed in the incident, officials say (see HealthCare.Gov Server Hacked).

Apple plans to add safeguards to help address security vulnerabilities exploited by celebrity-photo hackers. The proposed changes include alerting users – using both e-mails and push notifications to devices – every time someone:

  • Changes an account password;
  • Uses a new device to log into an account;
  • Restores an iCloud backup to a new device.

After receiving a related alert, the user can immediately change their account password, or file a report of a suspected security breach with Apple. The company has yet to detail how exactly it will respond to those reports.

Privacy

Magazines in Michigan cannot share your personal information. The Michigan’s Video Rental Privacy Act limits the ability of companies to disclose information regarding customers’ video rental activities. In a case filed by a consumer who alleged that a magazine company had improperly disclosed her personal information, along with information about the magazines to which she subscribed, the U.S. District Court for the Eastern District of Michigan recently held that the law does in fact apply to magazines. The court noted that the statute is directed to companies “engaged in the business of selling at retail, renting, or lending books or other written materials, sound recordings, or video recordings,” and that magazines constitute “other written materials.”

My Appearance on Chat with a Lawyer

I recently appeared on a local television show “Chat with a Lawyer.” I sat with the host Wala Blegay to discuss Intellectual Property law and protecting your business.  Please watch and enjoy!

 

 

 

If you are in the DC metro area the episode will continue to air on Channel 25 Verizon and Channel 71 Comcast twice a day starting this week!

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I have a Trademark, Now What?

Congratulations you’ve successfully secured a federally registered trademark for your business, blog, or creation!!!  

Go ahead and celebrate but remember this is not the end of your obligation. In addition to policing or searching for unauthorized use of the brand, you must maintain your trademark rights with the United States Patent & Trademark Office (USPTO). 

Trademarks require regular maintenance to continue to enjoy the use and protection of the mark. As the owner, you must complete and submit certain filings and fees with the USPTO at specified intervals.  Failing to submit these filings and fees will result in cancellation of the trademark by the USPTO. Additionally, there is an extra filing option that can further strengthen your protection. Knowledge of these intervals and timely adherence to the deadlines are a major part of maintaining a strong mark.

Required Maintenance Filings

All trademark maintenance filing deadlines are measured from the date that the mark was officially registered with the USPTO. There are two required filings, the Affidavit of Use and the Renewal Application.

Affidavit of Use – The USPTO requires the owners of registered trademarks to file an Affidavit of Use between five and six years after registration to prove continuous use of the mark in commerce.  After this initial filing, a trademark owner must submit an additional Affidavit of Use before the end of every ten year period.

Renewal Application – Additionally, at the end of every ten year period, a trademark owner must file a Renewal Application.

**Warning: If the Affidavit of Use and Renewal Applications are not filed in a timely manner, the registration will be cancelled.  Registrations that are cancelled because of a failure to file an Affidavit of Use and/or a Renewal Application cannot be revived or reinstated.

Timing: As you can see, the initial maintenance filings must be completed between the fifth and sixth years of registration and subsequent filings are completed once every ten years.

** Warning: All maintenance filings have a six month grace period where the filings may still be completed, but at a higher price.

Cost:  Renewal Applications are $400 per class. The additional fee for filing during the grace period is $100. Filing Affidavits are priced between $100 – $200. The additional fee for filing during the grace period is $100.These prices are subject to change so consult the USPTO.gov website for current pricing.

How to file:

  1. Visit the USPTO site and navigate to “Registration Maintenance/Renewal/Correction Forms”.
  2. Navigate to Declaration of Use and/or Excusable Nonuse of a Mark under Section 8 or Combined Declaration of Use and/or Excusable Nonuse/Application for Renewal under Sections 8 & 9 if you are filing both at the same concurrently.
  3. You must supply your registration number, then answer questions as to who is filing the declaration
  4. You must provide information as to the entity that owns the mark
  5. You must upload a specimen showing the mark as used in commerce
  6. You must execute the declaration as to whether the marks have been in continuous use on the same goods or services as originally declared when the applications was file. If not, you must supply the appropriate information.
  7. You must provide electronic signature
  8. You must pay for filing

Recommended Additional Filing

Declaration of Incontestability – This filing while not mandatory is extremely beneficial in defending and protecting your trademark rights.  A Declaration of Incontestability will make your mark’s registration conclusive evidence that the mark is valid, that you own the mark and that you as the owner have the exclusive right to use the registered mark with the goods or services on the registration in commerce.

Timing: A Declaration of Incontestability should be filed with the initial maintenance filings between the fifth and sixth years or as soon as you have five years of continuous use.

Cost: $300 per class. The additional fee for filing during the grace period is $100.

How to file:

  1. Visit the USPTO site and navigate to “Registration Maintenance/Renewal/Correction Forms”.
  2. Choose 2. Declaration of Incontestability of a Mark Under Section 15 (unless you plan on filing a combination declaration including Section 8).
  3. You must supply your registration number, then answer questions as to who is filing the declaration
  4. You must provide information as to the entity that owns the mark
  5. You must execute the declaration affirming incontestability (see above).
  6. You must provide electronic signature
  7. You must pay for filing.

Protect your investment and make sure you keep up with your maintenance fees! Consult an attorney for help with the filings.

 

Internet Updates June 2014

There is so much going on in the Internet space that I have compiled some of the most interesting happenings of June. They all link to more info. Please read, enjoy and let me know if you want me to expand on anything!

Are threats made on social media protected free speech, or potentially criminal actsThe U.S. Supreme Court has agreed to examine the constitutionality of a federal law making it a crime to transmit communications containing “any threat to injure the person of another.” In this case, the “threats” were in a series of Facebook postings.

Be careful what you post on Facebook, you might get a ticket for it… A woman in a Chicago suburb received a $50 ticket in the mail alleging that she had used a dog park without a permit. The ticket was based entirely on a Facebook posting that the woman had made, and the police immediately rescinded it, saying  that they do not monitor social media in search of potential lawbreakers.

It might be a crime to friend your boss if you live in Arkansas! Arkansas legislators are considering changing a 2013 law after Facebook informs them that the law may have inadvertently made it a crime for a boss and an employee to become Facebook friends.

Snapchat may have competition. According to the Los Angeles Times, Facebook prematurely released, then withdrew, a new mobile app called Slingshot that is intended to compete with Snapchat and permit users to send each other photo and video messages.

Is Twitter in trouble? Twitter’s leadership was thrown into disarray on June 12 after Ali Rowghani resigned suddenly as the company’s chief operating officer amid a dispute with Chief Executive Dick Costolo. Twitter’s stock has fallen about 42 percent this year as concerns have arisen that the company is not signing up enough new users.

Should you make social media rules for your marriage? More and more couples are sitting down with their lawyers before marriage to discuss a social media clause in their prenuptial agreement – covering what they can and cannot say or post about each other. These agreements appear to be enforceable in court if they are specific enough.

The CIA is on Twitter! The CIA has entered the realm of social media, setting up a Twitter presence and a Facebook account. There one can find, among other things, reflections on intelligence history and fun facts from the CIA World Factbook.

Can’t ask for personal social media account logins in Louisiana! 
On May 23, Louisiana became the latest state to enact a law prohibiting employers and public and private educational institutions from requiring applicants, employees, and students to provide access to their personal online accounts.

Every company would be well advised scrutinize their marketing practices on an ongoing basis to ensure that they do not inadvertently expose the company to risks under the Lanham Act. Two US Supreme Court cases decided this term could result in a substantial increase in the number of Lanham Act claims brought under that statute alleging “unfair competition” resulting from product labeling and marketing practices that are alleged to be false or misleading.

  • Lexmark International, Inc. v. Static Control Components, Inc., No. 12-873, slip op. (March 25, 2014), in which the Supreme Court broadly construed the Lanham Act to permit lawsuits by all companies alleging injuries that were proximately caused by false or misleading advertising or promotion, even if the plaintiff was not a direct competitor of the defendant and suffered only “collateral damage.”
  • Pom Wonderful LLC v. Coca-Cola Co., No. 12–761, slip op.  (June 12, 2014), the Court’s second Lanham Act case of the term,  in which it eliminated a potential safe harbor from Lanham Act claims for companies in regulated industries who complied fully with applicable regulations regarding the labeling and marketing of their products.

Interested in being social anonymously? It is harder than you think… Recently a variety of “private” media platforms have emerged. For years, social media platforms have facilitated (or even, in many cases, required) us to use our real identities, with the aim of building friendships and networks in the online world. But these new social media apps (such as “Secret,” “Whisper,” “Yik Yak”) are designed specifically to enable users to share posts anonymously.

“Anonymous” doesn’t necessarily mean anonymous. Even if users are not required to provide any form of contact details to use an anonymous app, the app is very likely to collect certain information that will help identify the user (e.g., the unique digital ID of the user’s phone, location information, etc.). Therefore, it could be be fairly easy to trace a user if required (e.g., by subpoena/court order). Indeed Secret’s Terms of Service state, “We may share information about you … in response to a request for information if we believe disclosure is in accordance with any applicable law, regulation or legal process, or as otherwise required by any applicable law, regulation or legal process.”

For more updates visit: http://www.sociallyawareblog.com

Will it be Hard to Register My Trademark?

Registered-Trade-mark-symbol
Photo from pinnacletms.com.au/difference-between-trademark-symbols/​

So you have great idea blog, business, product, brand, etc.! Now what?  ​How do you make sure you are protecting your asset?

Well, an important part of protecting your invention, product or business is protecting the name.  Start by​ outlining​ ​a strategic plan for trademarking your intellectual property. ​A very important part of that strategy is determining whether or not your proposed mark can be trademarked.

How can I​ ensure my mark is trademarkable? What is the likelihood for successfully trademarking this name? Should I consider changing the name to make sure that it can be trademarked? These are questions you should ask yourself, preferably while under the consult of an attorney. ​

O​nly the USPTO can make a final decision as to whether or not a mark is eligible for federal trademark registration. However, they have ​provided guidance on what terms can be trademarked and ways to make otherwise untrademarkable names trademarkable. This guidance is a great framework to use when determining if you can successfully trademark your name.


Trademark rights are designed to protect the consumer from confusion. Therefore, the overarching rule is the USPTO will not approve a trademark they think will cause consumer confusion. Here are a few things to consider to help you think about whether or not your mark may cause consumer confusion in the eyes of the USPTO. 


Originality
The first thing to know is the USPTO will not trademark a name that is already trademarked or similar to a mark that is already trademarked, in the same or similar classification. The USPTO wants consumers to be able to associate a specific set of goods or services to a mark so if two marks are confusingly similar and are associated to the same or similar goods or services it is not likely to receive a federal trademark registration.  A trademark clearance search is great tool to ensure that your mark does not infringe on the trademark rights of others. This search should scour federal and state registrations to ensure no one has already secured the same or similar trademark. Internet searches of businesses or brands operating with the mark that have not yet secured federal or state trademark protections are also very important because they may have common law trademark rights. Common law rights arise from actual use of a mark and may allow the common law user to successfully challenge a registration or application. It’s imperative to know all potential impediments.  Having a clearance search done by a trademark attorney during the planning stages of your new venture can help you avoid rebranding and the expenses therein, after you’ve already launched.

Also if you are starting a business you should check with your state’s business entity registration office to see if the name you’ve chosen is available for your entity name.

Distinctiveness
Trademark law requires that a mark be distinctive or unique such that it easily distinguishes a product or service from the product or services of others. The distinctiveness of a device can generally be categorized into one of five categories which fall along a spectrum of distinctiveness. From most distinctive to least distinctive, these categories are:

  • Fanciful – marks created for the sole purpose of being used with the product or service. This is the strongest type of mark. E.g., would be XEROX or KODAK,
  • Arbitrary – a common word which is used in connection with products or services unrelated to the dictionary meaning. E.g. APPLE for computers. Arbitrary marks are also immediately eligible for registration.
  • Suggestive – marks that suggest a quality or characteristic of the goods and services but requires imagination on the part of the consumer to identify the characteristic. E.g., MICROSOFT (suggestive of software for microcomputers)
  • Descriptive – ​​marks that merely describe the good or service. The mark likely uses the dictionary meaning of a works in connection with products or services directly related to that meaning. Unlike suggestive marks there is no imagination or creativity needed to identify the product or service. E.g., LEKTRONIIC was famously refused protection by the USPTO on ground of being descriptive for electronic goods.
  • Generic – the common name for the products or services in connection with which it is used, such as “salt” when used in connection with sodium chloride.
TM registration-table
Photo from http://www.patent-usa.com/trademark/


Devices that are fanciful, arbitrary, or suggestive are usually considered distinctive enough to function as trademarks. On the other hand, if a device is descriptive, the device can function as a trademark or service mark only if it has obtained secondary meaning. Generic devices can never be a trademark. A mark can become generic if the trademark becomes the generic name for the good or service. For example Escalator. ​ See my previous post “Trademark Holders Beware of the Generic Curse” for more details.

Figure out where on the spectrum your mark falls. This will help gauge your likelihood for success and how long the application process will take. The closer you are to not distinctive portion of the spectrum the more likely you will need to prove distinctiveness tot he USPTO. If you have not yet selected a name, keep these limits in mind as you create one.

A few additional tips…
​Claim Your Mark
Until you have secured a federal registration you cannot use the ® symbol, which indicates that the trademark is registered with the U.S. Patent and Trademark Office (“PTO”). However,  you can use the ™ symbol with the mark to identify it as a trademark, whether or not a federal trademark application has been filed. The ™ symbol can be used with marks for both goods and services, although some companies use SM (referring to a service mark) with a mark that is used for services as opposed to goods. These symbols put people on notice that you claim rights in the mark, although common law (a trademark mark rights acquired merely by using the mark) doesn’t give you all the rights and benefits of federal registration.
Get Help!
Consult an attorney when determining whether or not to file a trademark. This is a brief overview and does not shed light on all of the intricacies of the process. Registration of a trademark is a very fact specific process and your mark must be analyzed on the merits. This article is just designed to help you frame your thought process. Attorney’s are uniquely equipped to position a mark to be successful and know how to fight a denial using case-law and previous registrations to get a seemingly untrademarkable mark trademarked.
Good luck!!

 

Trademark Holders Beware of the Generic Curse

Trademarks are wonderful means for protecting your brand. You want your trademark to be pervasive and resonate in the minds of consumers. You want it to be apart of their everyday life! However, when a trademark becomes so common that it is used at the term for the item or service rather that the brand you run the risk of loosing your trademark because it is generic. Under the Trademark Act generic terms cannot be trademarks.  A generic term is a word that the relevant purchasing public understands primarily as the common name for a particular product or service.

What is kleenex?  If you said tissue, you’re incorrect it is actually a brand of tissue that has become so common it is often used as a generic term. Kleenex is lucky because the company fought and won to keep its trademark alive. However, there are a whole host of others that were not as lucky.  For example, escalator, originally a trademark of the Otis Elevator Company, or aspirin which is still a Bayer trademark name for acetylsalicylic acid in about 80 countries, including Canada and many countries in Europe, but declared generic in the U.S.

Recently the word “skew-ball” also came under scrutiny. Full Circle United, LLC (Full Circle) claims the word “skee-ball” is the common name for the game of skee-ball, which has been an American boardwalk and arcade pastime for over a century.  Full Circle, which organizes skee-ball competitions across the country, was sued by SBI, Inc., a manufacturer of skee-ball machines, and owner of the federal trademark registration of “skee-ball,” for infringement of the term “skee-ball.” Full Circle countered by filing its own complaint alleging that SBI has no rights in the word “skee-ball” because, just like many other marks that have come and gone, such as yo-yo, trampoline, and pilates, skee-ball is generic. This case is still being decided.

This phenomenon is hard to control because you want your brand to be popular but some ways to prevent genericizing a brand are:

A sign in a supermarket using "Jell-O" generically - Image from Wikipedia
A sign in a supermarket using “Jell-O” generically – Image from Wikipedia
  • Use the proper name for the good or service in conjunction with the trademark or brand name. For example, you’ll notice that Kleenex’s brand now reads “Kleenex brand Tissue”
  • Let the world know you have a registered trademark by using the appropriate symbols. Use the letter R enclosed within a circle, ® for federally registered marks and for an unregistered mark, use TM.
  • DO NOT use your trademark as a noun. For example: Put on a BAND-AID – NO! Put on a BAND-AID brand bandage – YES!
  • DO NOT use trademark as a verb or plural. Go XEROX the document – NO! Make a copy with the XEROX copier – YES! I need two Kleenexes – NO! I need two Kleenex tissues. – YES!
  • Police your trademark. Correct others misuse of your trademark
  • Educate the public especially authorized users, distributors, and anyone else consumers will believe have authority or knowledge about the brand.

Be proactive about preventing your brand from becoming a generic term. Although this phenomenon is a symptom of your success you want to avoid loosing your trademark

How Much of Your Data can Apple Hand to Law Enforcement?

We are all aware (or at least we should be) that our telecom providers are handing over our data to the police when necessary. Well have you ever wondered just how much and what it takes to get that data? iphone-privacy-2011-04-06-1302104043Apple posted their new guidelines describing what data the company can provide to law enforcement and the processes for requesting that data.

The document breaks it down into two basic types of data: information stored on Apple’s servers and information stored locally on iOS devices.  I have outlined the kinds of data and how they can be obtained in a chart below.

Essentially anything you’ve backed up to or stored on iCloud is available for Apple to provide to law enforcement, including connection logs and IP addresses you’ve used. Additionally a lot of the data associated with your Apple ID is available as well. Therefore, any information you’re providing Apple is available for them to pass along. This is something to consider when deciding if or what to back up on iCloud.  You may want to avoid backing up sensitive company data or private information on iCloud. Some information cannot be avoided, such as anything associated with your Apple ID.

Can they access data on my iOS device???

Yes. Apple can bypass security passcodes on our iOS devices to extract “certain categories of active data,” though it apparently cannot bypass that protection entirely. If provided with a valid search warrant, Apple can hand over SMS messages, pictures and videos, contacts, audio recordings, and your phone’s call history, but it can’t access e-mails, calendar entries, or information from third-party applications. Devices must be running iOS 4 or newer, must be “in good working order,” and must be provided directly to Apple’s headquarters along with an external storage drive twice the size of the iOS device’s internal storage.

Will I know if this is happening?

Maybe. The guidelines state that Apple will “notify its customers when their personal information is being sought in response to legal process except where providing notice is prohibited by the legal process itself.” Apple will also avoid notifying users if the company “believes that providing notice could create a risk of injury or death to an identifiable individual or group of individuals or in situations where the case relates to child endangerment,” though this is entirely up to Apple and not to the law enforcement agencies involved. These notification requirement will help prevent random and unfounded searches.

What is missing?

The policies and capabilities surrounding iCloud Keychain, iMessages and FaceTime calls are unclear and disputed. Apple claims iMessage & Facetime are encrypted but there is some speculation otherwise.

Is this unusual?

No, other tech companies have similar policies. For example, Google provides a similar “Transparency Report” outlining the types of data available to law enforcement. The notification policy is new and several other tech giants, including Facebook and Microsoft, have already indicated that they plan to expand their policies on notifying customers whose data has been requested by law enforcement

 

Where is the Data? Type of Data Means to Obtain Data Restrictions
Information stored on Apple Servers Data Associated with your Apple ID contact inormation obtainable with a subpoena or greater legal process
customer service records
transaction history both in store & online
iTunes gift card information
Data Associated with your iCloud Account connection logs & IP address used Any iCloud information that the user deletes cannot be accessed.
60 days of iCloud mail logs that “include records of incoming and outgoing communications such as time, date, sender e-mail addresses, and recipient e-mail addresses” e-mail logs require a court order or search warrant
any e-mail messages that the user has not deleted requires a search warrant
any other information that can be backed up to iCloud – As of this writing, this list includes contacts, calendars, browser bookmarks, Photo Stream photos, anything that uses the “documents and data” feature (which can include not just word processors but also photo and video apps, games, and data from other applications), and full device backups
Information stored locally on iOS devices SMS messages requires a search warrant – Devices must be running iOS 4 or newer, must be “in good working order,” and must be provided directly to Apple’s headquarters along with an external storage drive twice the size of the iOS device’s internal storage. Cannot access e-mails, calendar entries, or information from third-party applications
pictures and videos
contacts
audio recordings
phone’s call history

Enforcing Trademarks on Social Media

As a trademark owner you have an obligation to “police” your trademark. What does that mean? You are responsible for finding and addressing infringement of your trademark rights. (Copyright holders have a similar obligation.)  A major part of policing or enforcing those rights is monitoring and addressing violations on social media.

Platform Content Removal Policies

Each social media platform has their own policies for removal of content whether trademarks or copyrighted work.  It is important to determine the appropriate method and provide all the necessary information to secure timely removal. Social media content changes very quickly so to be effective at protecting brand perception you must be swift and efficient about requesting content removal.

Use this infographic I created as a quick reference guide for Takedown Policy Requirements On Top Social Media Sites.

What Do I Take Down?

Not only is knowing the policy requirements important you need to determine when a post/content warrants removal. This is a strategic decision your company should make while engaging all necessary stakeholders including but not limited to management, legal and marketing/PR. Below are a few things to consider when determining when to take down a post:

  1. As an organization develop a policy for what types of brand use or content use are important to the company. Use that as a guide to addressing infringement.
  2. Embrace positive uses of your mark. There are positive uses that can promote your brand. Coca Cola illustrates a great example of embracing what could have been trademark infringement when two fans created a Facebook page for them.  Coca cola just dedicated a few members of their team to monitor the content.
  3. Know the social media platform rules and policies on content removal. See the infographic for some help but visit the policies on the platform.
  4. Figure out who is likely to comply with your request for content removal. It is usually easier to make a request through the platform. It can be hard to determine who posted content and their contact information. Additionally, it is unlikely that they will cooperate. Remember that the social media content provider is not likely liable for anything unless you can prove a partnership or joint ownership and control over the account.
  5. Reviews & other commentary about your brand, positive or negative, are allowed. Most social media sites will not take down content of this nature and this can cause backlash that will outweigh the potential benefit. This is a great opportunity to engage consumers and either address concerns or reinforce positive perceptions.
  6. Consider the public relations implications of requesting removal. Will attempting to remove the content cause backlash that will be more detrimental? There have been a number of instances of brands garnering greater negative media attention for trying to take something down justified or not. If infringer’s presence is significant enough to cause concern consider joining the conversation.
  7. Include all the requested information. Incomplete requests for content removal may cause unnecessary delays.
  8. Include trademark registration numbers for all jurisdictions. Some social media platforms will only block content in the applicable jurisdiction or country if you only provide proof of one registration. Provide all registrations so the social media platform is aware of the extent of your protection.
  9. List exactly where infringements are located on the site. Platforms are not required to search for infringements.
  10. Submit evidence of current use. This information only serves to strengthen your claim and is as easy as providing the url to your website.

Remember your objective when policing your mark is to make sure consumers will not be confused. Your trademark is your calling card, do not let anyone use it in a way that dilutes your reputation or capitalizes on the goodwill or value created in that trademark. If you do not have in-house legal counsel consult with an attorney to develop a comprehensive plan to address trademark infringement.