Hardwood Floors December 2019/January 2020

By Matthew E. Misichko

In a social media post, using a word, phrase or symbol to promote a similar or related product that is so similar to another company’s trademark can create confusion. This “likelihood of confusion” allows the trademark owner to object to such use of the specific word or phrase that is trademarked. Conducting a trademark search in the Trademark Electronic Search System (“TESS”) on the United States Patent and Trademark Office (USPTO) provides information on current trademarks registered that should avoid being used. For example, Fantastic Floorwax Company posts a tweet that says “Be sure to come in and buy some products during our 3-day sale! #bigsale #allwedoiswax”. If desirable, UKW Holding Company, a Florida corporation and owner of the trademark “All We Do is Wax” could object, and require Fantastic Floorwax Company to remove its hashtag from its tweet. Copyright Copyright protection is trademark, which requires registration or actual use of the word or phrase, the creator of the original work automatically receives copyright protection in that original work. The most common examples of works protected by copyright law include literary works, works of art, photographs, and software. When applied to social media, using content you did not create likely means you are violating copyright law without receiving the owner’s consent. Frequently, issues concerning copyright law revolve around the use of pictures on Platforms. The important question to ask is “Who took the picture?” Under copyright law, the person who presses the button on the camera – not the person who owns the camera nor the person(s) in the picture – is the copyright holder of the picture. For example, on its Instagram account, Fantastic Floorwax Company posts an on-court picture of the Chicago Bulls basketball court with a heart emoji and the hashtag “#somuchwax”. In order to assure proper use of the photo, Fantastic Floorwax Company should determine who took available for “original works of authorship” that are in tangible form; whether the work is published or unpublished is irrelevant. Unlike a

the picture, receive consent from the Chicago Bulls or the owner of the picture or, if consent is not able to be received, agree to license the photo from the copyright owner for use in the Instagram post. • Defamation A defamation claim involves a false statement presented as a fact about a certain individual that results in harm to reputation or loss of business due to the false statement being “published” to a third party. The resulting harm in reputation comes in many forms including loss of business revenue, accusation of committing a crime, or incompetence in a profession. Standards of proof required vary based on the applicable harm in reputation. In the social media world, defamation may come in the form of original statements or the re-posting of material from another source. • Privacy Regardless of views or interactions, social media posts have a very large public reach. Once a message is sent, it is part of a worldwide network. Courts have previously concluded that once a message is posted and viewable by another on a Platform, the message originator has forfeited any privacy interest in the message. A company’s right to privacy depends on whether the company has a “reasonable expectation of privacy.”This is determined by the facts and circumstance of the relevant situation. A reasonable expectation of privacy is waived if an individual voluntarily posts personal information through its social media platforms. However, if information is posted about another improperly and without permission, privacy rights may be violated. For example, on its Facebook page, Fantastic Floorwax Company plans a post as a thank you to its new employees including a picture of the employees together at orientation. In the background of the picture, each employee’s cell phone number is listed on a whiteboard. Exposing this private information to the public may violate privacy law. WHAT PROTECTIONS SHOULD YOU HAVE IN PLACE? The User Agreement and the Social Media Policy documents will spell out the protections afforded to the company and the terms and conditions employees and other parties agree to pursuant to use and engagement with the Platforms. Be sure that such policies do not violate any rights of employees. Regarding social media policies, federal law and the National

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