For startups, social media can offer cheap and effective publicity. Startups must also be mindful that any advertising, including on social media, will require you to comply with federal regulations. While sponsored content regulations once went largely unenforced against social media based advertising, times are changing. Advertising on social media is increasingly drawing the eye of regulators. Federal Trade Commission (FTC) regulations demand honesty and transparency in advertising, and fortunately, honesty and transparency will keep your company compliant.

In 2016, the FTC sued retailer Lord & Taylor alleging the company paid online influencers to post pictures of themselves wearing a specific Lord & Taylor article of clothing. The posts failed to disclose Lord & Taylor provided the clothing for free and paid each influencer thousands of dollars.  Lord & Taylor also paid for a positive review in the online publication Nylon that appeared without notice it was a paid promotion. The product sold out quickly, but the FTC sued Lord & Taylor. The case ultimately settled, and the settlement will affect Lord & Taylor for up to twenty years.  Lord & Taylor did not make the posts that got them into trouble; they only failed to require the influencers to disclose their relationship with Lord & Taylor. Your company is responsible for others’ posts if you pay for the posts—tracking paid posts to ensure regulatory compliance is obligatory.
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trademarkChoosing a common or trendy name for your startup opens your company to risk. You might like the name “Company XYZ,” and you might think you’re the “Company XYZ” of your field, but “Company XYZ” might disagree with you. If you are looking to choose a brand or product name, you need to think about trademarks earlier than you think.

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clocking systemA Wisconsin employer recently made headlines when it announced that it was offering its employees the option to be outfitted with a microchip to replace the cards or badges they use regularly while at work. The company, called Three Square Market, held a “chip party” on August 1 during which 41 out of its 85 employees opted to have the small chip implanted in their hand. Although the purpose of this RFID chip is limited to office functions such as making purchases in the break room market, logging into computers and printers, and accessing the building, one cannot help but think about the implications this type of technology could have on employee privacy.

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Social media cubesIt seems like we hear about a new data breach every week. Thanks to one of the most recent breaches, you could be only ten dollars away from getting in touch with your favorite A-list celebrity. Instagram — the Facebook-owned photo sharing company — was recently hacked due to a flaw in the program. Most recent reports indicate up to six million Instagram users’ email addresses and phone numbers may have been made public due to the data breach.

While the breach initially appeared to affect only celebrities and verified accounts, it has now been shown to affect a much wider range of accounts.


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trademarkAccording to BrandFinance’s annual report on the world’s most valuable brands, the GOOGLE trademark is the most valuable brand in the world; worth over $100,000 million. So how is it that the world’s most valuable brand is the subject of a claim that it has become generic and is no longer protectable?

When a trademark owner develops a product category that is new to the marketplace, its success in branding can sometimes be its demise if the brand loses its significance as a trademark and becomes the generic name for the product itself. Think aspirin, escalator, laundromat, and kerosene.

While all of us should be so lucky to develop a brand that becomes so well-known it becomes vulnerable to a trip to the trademark graveyard, this case is a good reminder to all brand owners to have processes in place to avoid such a finding.


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As many trial attorneys will tell you, the most crucial phase in many trials is jury selection. While its significance is known, attorneys are often left with minimal information gathered through juror questionnaires or voir dire from which they are forced to analyze cause challenges and make strike decisions.  However, the growth of social media over the past decade has enabled lawyers to gather additional information about the interests, activities and proclivities of veniremen that allows counsel to make more informed decisions during the jury selection process.

Social Media Jury

According to Pew Research Center, 74% of online adults use social media sites. The numbers are consistent across gender, education and income levels.  A trial attorney, therefore, has the ability to discover information about three out of every four prospective jurors on the Internet.


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Data LocksWhile advising the board of directors of a company to pay close attention to data security issues is akin to your dentist telling you to floss, the stakes are too high for a board to ignore. The board of any company must constantly monitor and assess its company’s data security procedures and potential risks. Although there is no strategy to prevent a security breach, each member of a board must exercise its fiduciary duty to consider the risks to a company. To the credit of many companies in the last several years, the assessment of data security risks has achieved a more pronounced position.
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music - nightlife- 78052785Taylor Swift recently filed over 100 U.S. federal trademark applications for song lyrics and other phrases, including THIS SICK BEAT, NICE TO MEET YOU. WHERE YOU BEEN? and COULD SHOW YOU INCREDIBLE THINGS, all filed to cover a range of items from ornaments to dinner ware. Other recent trademark filings of note include filings for LEFT SHARK (filed by a company associated with Katy Perry after her Super Bowl performance) and FAMOUS JAMEIS (apparently filed by an agent for Florida State quarterback Jameis Winston).

A self-identified musician/journalist protested Swift’s filings by plastering his own site with the wording “THIS SICK BEAT TM” and calling the filings an “attack on freedom of speech”. The New Yorker magazine even published a spoof with its own list of possible Swift trademarks (our favorites: “I Enjoy Fun” and “Breakups Stink”).

As IP attorneys, we welcome the opportunity to consider what it means to own and register a trademark that is born out of popular culture or a social media trend.


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In Part 1 and Part 2 of this series, we discussed copyright issues for 3D printers. Not all companies have made the decision to jump into the world of 3D printing. Parts 1 and 2 may not have applied to you at all. However, no matter your business, your company may have to deal with a third party printing your company’s product, in violation of your rights.

If a direct competitor has begun printing a product which is clearly in violation of your copyright, enforcement is relatively straight forward. However, the scary (and revolutionary) thing about 3D printers is that anyone can print your product from the comfort of their easy chair. Infringers are no longer restricted to the few businesses that can afford to ramp up large-scale production. How do you handle enforcement if the infringer is a relatively small time start-up? What if the infringer is a fan of your product?


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