Accepting Guest Blog Posts

I have accepted a position that will not allow me to write in 2016. However, I want to continue to provide information on cyber, intellectual property (IP), social media, security, privacy, and technology law and policy to you all.  So…. I am accepting  submissions from guest bloggers!

Please send me your best cyber, IP and tech law and policy posts. Many of this blog’s followers are entrepreneurs, technophiles, tech novices, bloggers, social media user and those intrigued by tech, so please cater your posts to that audience. Please send posts to thedigitalcounselor@gmail.com. I will notify you if your post is selected.

Thank you for your submission, in advance, and more importantly, THANK YOU FOR READING!

I hope the readers find previous posts and any information others are able to provide in my absence helpful! And I look forward to returning in 2017!!

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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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.

Do you deserve overtime pay for that email???

How many times have you answered an email after hours?  Is there such thing as “after hours”?  In today’s mobile society, the blessing and curse of smartphones and email is the level of accessibility. Employers are able to capitalize on this accessibility and reach new heights of productivity. When the amount of time an employee is inaccessible is decreased to maybe the time they are sleeping, companies experience increased productivity and near 24/7 operation.  Why not take full advantage?

Great for them not necessarily for us. Now that this level of accessibility is the norm, it is hard to set limits on when you can and cannot be reached without potentially limiting your upward mobility within the company. In this hyper competitive job market, we all know that the smallest things can make the largest difference. No one can afford to lose their competitive edge because they refused to answer an email after 6pm.

Sgt. Jeffrey Allen is suing the City of Chicago for answering his “required to use” department Blackberry when he’s off-duty.  And he’s not the first. Jason Swart and Justin Foley, officers in Yorktown Police Department’s K-9 Unit, have sued the Town of Yorktown for additional overtime incurred while caring for their police dogs.

These suits bring up an interesting conundrum that we often face because the law is always significantly behind technology.  Employment & labor laws do address this kind of issue. One email should not qualify for overtime especially if it is a brief and easy response; but at what point does responding to emails and phone calls outside of working hours violate the rights of employees? How do you quantify the number of emails that result in an hour of overtime or the depth of thought necessary when responding? Can an employee charge for every tenth of an hour used or should they wait until they’ve done at least 30 minutes of outside work?  And what will be the response of employers? Is the chance for overtime worth sacrificing a salary and likely having your base pay cut to account for potential overtime?  If you begin to nickel and dime your employer, will they adopt the same approach? How will that manifest itself? Decreased flexibility? Strict time requirements for assignments? Less incentives?

This could become a hot button issue as technology continues to penetrate the lives of employees and as employers seek to control such use both inside and outside the office.

What do you think?

 

Business Owners Trademark Your Brand!: New Law Helps Unregistered Tradmark Owners in the Fight to Protect Their Brand

Get your mark trademarked!! A lot of start-up companies wait to trademark their brand name and/ or logo for monetary reasons or out of sheer ignorance. When trouble arises they hope that state common law protections will be sufficient to protect the time, money and energy invested into creating a recognizable brand. This is true to an extent but the protections are not as clear-cut nor as strong for trademarks not federally registered.

What happens if someone else tries to use your mark or something very similar to it? Well, if they get a federal trademark before you, you might be in some trouble.

Section 43(c)(6) of the Lanham Act, 15 U.S.C. 1125(c)(6) included a complete bar for state dilution claims brought against federally registered marks. Which means that if someone federally registered your mark before you and you tried to do something about it based on a dilution claim (they are weakening the strength of your mark) you would have very hard time bringing a claim not to mention proving prior ownership if you get to a proceeding.

President Obama on October 5, 2012, signed legislation (H.R. 6215) that restores the limitation of the federal registration defense to trademark dilution claims based on state law only.  This will make it easier to bring a dilution claim against someone attempting to steal your mark or gain an advantage by confusing consumers using your mark.  The House Report (H. Rept. 112-647) for H.R. 6215 points out that Congress could not have intended that federal registration could serve to bar all dilution claims since that result would make it difficult to cancel a diluting mark that is registered. That would only encourage illegitimate mark holders to register diluting marks, and would force legitimate mark holders to expend greater resources monitoring registrations as well as other marks being used in commerce, the Report noted.

Signed Legislation

H.R. 6215 restores the intent of the House-passed version of 15 U.S.C. 1125(c)(6) as follows:

(c)(6) The ownership by a person of a valid registration … shall be a complete bar to an action against that person, with respect to that mark, that —

(A) is brought by another person under the common law or a statute of a State; and

(B) (i) seeks to prevent dilution by blurring or dilution by tarnishment; or

(ii) asserts any claim of actual or likely damage or harm to the distinctiveness or
reputation of a mark, label, or form of advertisement.’.

The need for this legislation was recently confirmed by a ruling of the Trademark Trial and Appeal Board in the cancellation action in Academy of Motion Picture Arts and Sciences v. Alliance of Professionals and Consultants, Inc., TTAB, Canc. No. 95055081, 9/24/2012.  The TTAB dismissed the action, finding that the language of the 2006 amendment barred a federal dilution claim against a federally registered mark.
Although this new law will help trademark owners without a federal registration protect their marks from infringers/illegitimate mark holders it does not mean that a legitimate trademark holder will be able to defend their mark. This only allows for a greater opportunity to appear in court. Then a legitimate mark holder must start the uphill battle to prove that they are the initial and legitimate mark holder. Trademark protections work better for entities or individuals who have proactively registered their mark(s) with the USPTO. I encourage every business owner, budding business owner, idealist, or individual with a cool mark to register your trademark. Protect your investment. Additionally, seek the help of a trademark attorney.  These applications seem easy but unless your mark is completely nonsensical and a new word you are likely to experience trouble registering the mark.