What Your Attorney Hopes What Your Attorney Hopes You Know About Business You Know About Business

BloggingBloggingRandall B. Bateman – Bateman IP Law GroupRandall B. Bateman – Bateman IP Law Group

Brian G. Lloyd – Parr Waddoups Brown Gee & Brian G. Lloyd – Parr Waddoups Brown Gee & LovelessLoveless

A blog is a powerful tool to publish your message

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A blog is also a power tool for violating someone else’s rights

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ALWAYS CHECK TWICE BEFORE YOU HIT

PUBLISH!

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Business TortsBusiness Torts

Blogs make a handy forum forBlogs make a handy forum for

defaming your competitorsdefaming your competitors

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Defamation/Defamation/Disparagement/Disparagement/

Trade Libel/Trade Libel/LibelLibel

1.1. A statement of Fact (Is it Fact or Opinion?)A statement of Fact (Is it Fact or Opinion?)

2.2. The statement is published (On a blog usually means published)The statement is published (On a blog usually means published)

3.3. The Statement is False or Defamatory; andThe Statement is False or Defamatory; and

4.4. Causes damageCauses damage

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Avoiding DefamationAvoiding Defamation

Avoid diss’ing your competitionAvoid diss’ing your competition Verify any facts you assert Verify any facts you assert

(or make sure it is expressed as opinion)(or make sure it is expressed as opinion) Always have a second pair of eyes reviewAlways have a second pair of eyes review

items before they are posteditems before they are posted Never, ever do mock posts that lampoonNever, ever do mock posts that lampoon

competitors (Murphy will visit you)competitors (Murphy will visit you)

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UNFAIR COMPETITIONUNFAIR COMPETITION

YOU EVEN HAVE TO BE HONEST ABOUT YOU EVEN HAVE TO BE HONEST ABOUT

YOUR COMPANYYOUR COMPANY

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Lanham ActLanham Act15 U.S.C. 1125(a)15 U.S.C. 1125(a)

(a)(a) Civil action (1)Civil action (1) Any person who, on or in connection with any Any person who, on or in connection with any goods or services . . . uses in commerce . . . false or misleading goods or services . . . uses in commerce . . . false or misleading description of fact, or false or misleading representation of fact, description of fact, or false or misleading representation of fact,

which— . . . in commercial advertising or promotion, which— . . . in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic misrepresents the nature, characteristics, qualities, or geographic

origin of his or her or another person’s goods, services, or origin of his or her or another person’s goods, services, or commercial activities, commercial activities,

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What Is Your IP Risk?What Is Your IP Risk?

Patent LawPatent Law Starting the1-year clockStarting the1-year clock Preventing Foreign FilingPreventing Foreign Filing Infringement RiskInfringement Risk

direct infringementdirect infringement inducing infringementinducing infringement

Using statements to interpret patents.Using statements to interpret patents.

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IP IssuesIP Issues

Trade SecretsTrade Secrets

Adequate control of inside information?Adequate control of inside information?

Protecting 3Protecting 3rdrd Party Confidential Information Party Confidential Information

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IP IssuesIP Issues

TrademarkTrademark Keywords – Crossing the line from comparison to Keywords – Crossing the line from comparison to

trading on someone’s goodwilltrading on someone’s goodwill

Functional UseFunctional Use

Look and feel (trade dress)Look and feel (trade dress)

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IP IssuesIP Issues

CopyrightCopyright Who owns your pictures?Who owns your pictures?

How important is that picture to you?How important is that picture to you?

If it was taken by an employee on their time-off – get If it was taken by an employee on their time-off – get an assignment (if they get mad, they can take it with an assignment (if they get mad, they can take it with them – or implied license)them – or implied license)

Document its originationDocument its origination

Purchasing photos/licensesPurchasing photos/licenses

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IP IssuesIP Issues

(Copyright Licenses)(Copyright Licenses) Good LicensesGood Licenses

Public DomainPublic Domain FreeBSD Documentation LicenseFreeBSD Documentation License Many BSD-style licensesMany BSD-style licenses http://en.wikipedia.org/wiki/BSD_license http://en.wikipedia.org/wiki/BSD_license Creative Commons Attribution License Creative Commons Attribution License

(creativecommons.org)(creativecommons.org) Note that other people can take & modify – no Note that other people can take & modify – no

complaintscomplaints Your Original WorkYour Original Work

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IP IssuesIP Issues

(Copyright Licenses)(Copyright Licenses) Unusable LicensesUnusable Licenses

Creative Commons Attribution Non-CommercialCreative Commons Attribution Non-Commercial

Creative Commons Attribution Non-Commercial Share-Creative Commons Attribution Non-Commercial Share-alikealike

Creative Commons Attribution Non-Commercial No Creative Commons Attribution Non-Commercial No DerivativesDerivatives

No PermissionNo Permission

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IP IssuesIP Issues

(Copyright Licenses)(Copyright Licenses) Tough CallTough Call

Proprietary LicensesProprietary Licenses

Royalty-Free LicensesRoyalty-Free Licenses

Stock Photo LicensesStock Photo Licenses

If its important, have it reviewed by counsel.If its important, have it reviewed by counsel.

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IP IssuesIP Issues QuotingQuoting

How much can I quote?How much can I quote? A bookA book A criticismA criticism Positive ReviewPositive Review Another WebsiteAnother Website A Parody – Commenting on the original (OK)A Parody – Commenting on the original (OK) A Satire – Using original to comment on societal ideas A Satire – Using original to comment on societal ideas

(NOT OK)(NOT OK) How much can I summarize?How much can I summarize?

Copyright law protects the expression, not the idea. Copyright law protects the expression, not the idea. Can summarize idea, not reproduce workCan summarize idea, not reproduce work

Think Cliff’s NotesThink Cliff’s Notes

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IP IssuesIP Issues

How much can I summarize?How much can I summarize? Copyright law protects the expression, not the idea. Copyright law protects the expression, not the idea.

Can summarize idea, not reproduce workCan summarize idea, not reproduce work

Think Cliff’s NotesThink Cliff’s Notes

Criticizing – Like Walmartsux.comCriticizing – Like Walmartsux.com Never offer domain for sale or settlement – they must askNever offer domain for sale or settlement – they must ask

Posting MusicPosting Music Permission – at least 2 right holdersPermission – at least 2 right holders

Need composition ownerNeed composition owner Need performance ownerNeed performance owner

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IP IssuesIP Issues

Criticising – Like Walmartsux.comCriticising – Like Walmartsux.com Never offer domain for sale or settlement – they must askNever offer domain for sale or settlement – they must ask

Posting MusicPosting Music Permission – at least 2 right holdersPermission – at least 2 right holders

Need composition ownerNeed composition owner Need performance ownerNeed performance owner

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Securities IssuesSecurities Issues

Regulation FD (“Fair Disclosure”)Regulation FD (“Fair Disclosure”) Rule 10b-5Rule 10b-5 Quiet PeriodsQuiet Periods Policies & PracticesPolicies & Practices

Regulation FDRegulation FD

Intended to prevent “selective disclosure”Intended to prevent “selective disclosure” Applies to any disclosure of material, non-Applies to any disclosure of material, non-

public information (including blogs) to public information (including blogs) to securities market professionals or shareholderssecurities market professionals or shareholders

Timing for public disclosureTiming for public disclosure Intentional disclosure – SimultaneousIntentional disclosure – Simultaneous Unintentional disclosure – Promptly (<24 hours)Unintentional disclosure – Promptly (<24 hours)

Regulation FDRegulation FD

““Public Disclosure” - Disclosure that is reasonably Public Disclosure” - Disclosure that is reasonably designed to provide broad, non-exclusionary designed to provide broad, non-exclusionary distribution of information to the public.distribution of information to the public.

Acceptable MethodsAcceptable Methods Press release – if widely disseminatedPress release – if widely disseminated Form 8-KForm 8-K Conference callConference call NotNot website website NotNot blog blog

Rule 10b-5Rule 10b-5

Prohibits Insider TradingProhibits Insider Trading Unlawful to . . .Unlawful to . . .

make any untrue statement of material fact . . . ormake any untrue statement of material fact . . . or omit to state a material fact necessary to [correct omit to state a material fact necessary to [correct

misleading statement] . . .misleading statement] . . .

in connection with the purchase or sale of any in connection with the purchase or sale of any security security

Rule 10b-5Rule 10b-5

““Duty to Correct”Duty to Correct” Correcting one statement in blog, chat room or Correcting one statement in blog, chat room or

other forum may create expectations among other forum may create expectations among investors that company has undertaken duty to investors that company has undertaken duty to correct future statementscorrect future statements

Preferred approach:Preferred approach: Press release – carefully address only selected Press release – carefully address only selected

issuesissues Form 8-KForm 8-K

Rule 10b-5Rule 10b-5

The Whole (Foods) StoryThe Whole (Foods) Story Anonymous blogs – “Rahodeb” (CEO John Mackey)Anonymous blogs – “Rahodeb” (CEO John Mackey)

Responded to market rumorsResponded to market rumors Promoted Whole Foods business and operationsPromoted Whole Foods business and operations Published optimistic forecastsPublished optimistic forecasts Criticized competitors – “OATS has no value and no future . . .”Criticized competitors – “OATS has no value and no future . . .”

SEC InvestigationSEC Investigation Potential charges for violation of Rule 10b-5Potential charges for violation of Rule 10b-5

FTC Merger Review – Transaction with Wild OatsFTC Merger Review – Transaction with Wild Oats Allegations that blogs reflected monopoly intentAllegations that blogs reflected monopoly intent

Quiet PeriodsQuiet Periods

Public Offering (IPO or Secondary Financing) Public Offering (IPO or Secondary Financing) Pre-filing period (underwriter engaged)Pre-filing period (underwriter engaged) Waiting period (registration statement filed)Waiting period (registration statement filed) Post-effective period (registration statement Post-effective period (registration statement

effective - until prospectus deliveries completed)effective - until prospectus deliveries completed) Proxy SolicitationProxy Solicitation Stock RepurchaseStock Repurchase

Policies & PracticesPolicies & Practices Suggested Elements of Blogging PolicySuggested Elements of Blogging Policy

Disclaimer: Views expressed in blog are those of blogger – Disclaimer: Views expressed in blog are those of blogger – not companynot company

No unauthorized disclosure of confidential/proprietary No unauthorized disclosure of confidential/proprietary informationinformation

No unathorized use of company name, logo or other IPNo unathorized use of company name, logo or other IP No blogging on company timeNo blogging on company time Avoid personnel issues – Harassment, disparagement or Avoid personnel issues – Harassment, disparagement or

threatsthreats No expectation of privacy - Blogs subject to company No expectation of privacy - Blogs subject to company

policies and monitoringpolicies and monitoring Violation may subject employee to disciplinary actionViolation may subject employee to disciplinary action Reference to related company policies Reference to related company policies

Policies & PracticesPolicies & Practices

Related Policies to Consider:Related Policies to Consider: Corporate Communications PolicyCorporate Communications Policy Codes of ConductCodes of Conduct Proprietary Information & Inventions PolicyProprietary Information & Inventions Policy Privacy PolicyPrivacy Policy Employee HandbookEmployee Handbook

Policies & PracticesPolicies & Practices

Sample PoliciesSample Policies Sun Sun

““Many of us at Sun are doing work that could change the world. We Many of us at Sun are doing work that could change the world. We need to do a better job of telling the world. As of now, you are need to do a better job of telling the world. As of now, you are encouraged to tell the world about your work, without asking encouraged to tell the world about your work, without asking permission first (but please do read and follow the advice in this permission first (but please do read and follow the advice in this note). Blogging is a good way to do this.”note). Blogging is a good way to do this.”

IBM IBM ““Whether or not an IBMer chooses to create or participate in a blog Whether or not an IBMer chooses to create or participate in a blog

or a wiki or other form of online publishing or discussion is his or or a wiki or other form of online publishing or discussion is his or her own decision. However, it is very much in IBM's interest -- her own decision. However, it is very much in IBM's interest -- and, we believe, in each IBMer's own -- to be aware of this sphere and, we believe, in each IBMer's own -- to be aware of this sphere of information, interaction and idea exchange.” of information, interaction and idea exchange.”