Author Archives: Elizabeth Stamoulis

What Is the Right of Publicity (and Are You Violating It)?

Is there a reference to your company’s notable clients on your website, or do your company’s social media posts include the names or images of individuals? If so, you may be violating their right of publicity.

The right of publicity allows an individual to prevent the use of his or her identity for commercial purposes without permission. “Identity” can include the individual’s name, voice, image, or likeness. And “commercial purposes” under Florida law is an uncertain standard.

Florida’s right of publicity is relatively broad.  Some states only allow “celebrities” to bring a claim, and some states only allow living persons to bring a claim.  Florida gives all individuals, regardless of their celebrity status, the right to bring a lawsuit, and Florida law extends its statutory publicity right for 40 years after an individual’s death.

One area where right of publicity issues arise often is social media. If your social media posts include the names or images of individuals, it is important to consider whether their consent is required. Some Florida cases have held companies liable when using others’ likenesses in Facebook posts to promote their company or event. These recent cases have warned against the potential suggestion of any type of endorsement (without permission) in online posts by businesses.

The right of publicity is a little-known, but very powerful, right.  In today’s increasingly digital society, it is crucial to consider the right of publicity and whether consent may be needed before using another person’s name or likeness in connection with your business.

Elizabeth M. Stamoulis
estamoulis@williamsparker.com
(941) 552-5546

Do You Own Your Company’s Internet Presence? (The Answer May Surprise You.)

Websites can make or break a business, and catchy social media posts are becoming part of a company’s brand.  Consumers look to websites and social media for company information, making the management of these digital assets crucial to a business’s success. While most companies put much effort into creating and sustaining their online presence, many do not implement policies to ensure that they own those digital assets.

Domain Names
Domain names are not traditional items of property but should be safeguarded nonetheless as vital company assets. A domain name signifies the primary identifier and addresses of a business’s website. To “own” a domain name, you must purchase it from a domain name registrar like GoDaddy. Purchasing a domain name registers it in the database of the Internet Corporation for Assigned Names and Numbers. This database keeps track of all registered domain names purchased from authorized registrars.

In many cases, companies will have employees, contractors, or IT consultants register the domain name. Often, that person will enter his or her own name as the registrant. However, this results in that person, rather than the company, being listed as the owner of the domain. If the employee or contractor ever terminates their relationship with the company, this can lead to arguments over the ownership of the domain name and the website.  There have been several cases where unhappy employees attempted to use their control of a domain as leverage against a former employer.

Social Media Accounts
What happens when a company has a well-established social media account run by an employee? Who owns the account? Who owns its content? If the employee leaves the company, what rights does the company have over the information for the account? It is important that business owners know the answers to these questions before issues arise. Leading cases make it clear that the answer to these questions depend on the facts of the case and a variety of identifiable factors.

In one case in California, an employee had managed a Twitter account used to promote its employer’s services. Upon termination, the employee refused to turn over the login information for the account or remove the company name from the account. The company sued the employee for misappropriation of trade secrets. The case eventually settled, with the employee allowed to keep all rights over the social media account and its followers.

In another case, a company hired an employee to develop websites and social media accounts to promote the company’s products. The employee signed an agreement stipulating that they would return all confidential information to the employer if employment was ever terminated. Upon termination, the employee refused to turn over the login information for the accounts. The court held that the employee was required to turn over the login information.

Protecting Digital Assets
Disputes over digital assets can be costly and time-consuming. The cases discussed above demonstrate that the best course of action is to prevent these types of issues from arising in the first place. This can be done with a with a well-drafted agreement. Many business owners have employees and contractors sign agreements ensuring that intellectual property created by the employee or contractor will be owned by the business. In the modern age of the internet, these agreements should be updated to include provisions making clear that digital assets such as domain names and social media accounts, along with their contents, are also owned by the business.

Elizabeth M. Stamoulis
estamoulis@williamsparker.com
(941) 552-5546

Pink October: Be Careful That Giving Does Not Cause You Grief

For many years now, the arrival of October, which has been dubbed “Breast Cancer Awareness Month,” has been accompanied by an onslaught of pink products being sold to benefit various breast cancer charities. This practice of selling products or services to benefit a charity (often referred to as a “commercial co-venture”) has become increasingly popular among business owners—in addition to the philanthropic goal of donating to a worthy cause, the use of the charity’s name will also often result in an increase in sales for the company. Because these partnerships involve claims made to consumers regarding the recipient, and use, of the funds, many states have begun to regulate commercial co-ventures to ensure that accurate information is provided to consumers and that the money is ultimately used in the manner advertised.

Unfortunately, there is little uniformity among the regulations of the various states. For example, some states require a written contract with the charity specifying exactly how the donation will be calculated. In some cases, this contract must be filed with the state. Other requirements may include registration with the state and furnishing financial statements to the charity and/or the state. In each case, the regulations across the states differ with regard to whose responsibility (either the for-profit company or the non-profit company) it is to ensure that these requirements are satisfied. Adding to the complexity is the fact that many sales involve the internet and interstate commerce, so commercial co-venturers may unintentionally, and unknowingly, subject themselves to the regulations of multiple states.

Entering into a commercial co-venture is a noble, but complicated, endeavor. If you are considering entering into a commercial co-venture, you should take steps to ensure that you are complying with all applicable laws.  Some best practices include:

  • Entering into a written agreement that grants a license to use the charity’s name in connection with sales;
  • Including an honest disclaimer of the amount being donated (including any minimums or maximums) in advertisements and on the product;
  • Keeping a detailed accounting of sales during the promotion; and
  • Consulting with a lawyer to confirm all state-specific requirements are met.

Elizabeth M. Stamoulis
estamoulis@williamsparker.com
(941) 552-5546

Protecting Your Company’s Brand Through Trademarks

Protecting your company’s trademarks is important to grow your brand and prevent other companies from trading off your hard-earned goodwill. Below are a few things to keep in mind when creating and protecting trademarks.

Choosing a Trademark
There are a number of considerations when choosing your company’s trademark.  Among other things, you should:

  • Make sure that your mark will not infringe on an existing mark. Your trademark could infringe another trademark because it is spelled the same, looks the same, or even sounds the same.
  • Consider choosing a more “distinctive” mark to receive a higher level of protection. While marks that are descriptive of your goods or services may be desirable from a marketing perspective, they can be harder to protect as trademarks.
  • Make sure that the domain name is available for purchase. Even if the trademark has not been registered, the domain name may be in use by another company.

Registration
The best trademark protection comes from registering the mark. Where you register will depend on where the trademark is used.

  • If the trademark is used for goods sent across state lines or services that affect interstate commerce, a federally registered trademark would provide the most complete protection.
  • If the trademark will only be used within one state, state trademark registration may be a simpler alternative to consider.

Keep in mind that just because your company is registered with your state’s Secretary of State or because you have registered a fictitious name does not mean your trademark is automatically registered.

Protection
Once a trademark application has been filed and the mark has been registered, you must have a plan in place to police your brand to make sure that others are not infringing it. If someone is infringing your trademark, this could lead to a loss of business or could affect your company’s reputation and its ability to fully protect its trademark.

Evolution
As your company evolves, so must your trademarks. As you create new products and services or expand the area of your business, you may want to create new trademarks or file existing trademarks in new jurisdictions.

These are just a handful of items to keep in mind for creating and protecting your company’s trademarks. Other forms of intellectual property protection for your company may also be available through copyright and trade secret protection. For more information on using intellectual property law to protect your brand, please give us a call or email.

Elizabeth M. Stamoulis
estamoulis@williamsparker.com
(941) 552-5546

Can Your Website Expose You to Copyright Infringement Liability? Make Sure Your DMCA Protection Is Up-To-Date

Does your website allow users to post content in any way (whether it be through a message board or even a simple comment or review), or do you link to other websites from yours?  If so, you may be subject to liability for copyright infringement if the posted or linked content is infringing.  Luckily, the Digital Millennium Copyright Act (the “DMCA”) creates safe harbors which could provide protection from such liability.

To qualify for the safe harbors, a website operator must satisfy a number of requirements, which may include the following:

  1. Adopting, reasonably implementing, and informing subscribers and account holders of a policy for terminating repeat infringers’ use of the operator’s system or network under appropriate circumstances; and
  2. Designating an agent to receive notices of alleged infringement.  As of the end of last year, the U.S. Copyright Office (the “Office”) implemented a new electronic system for the designation of agents.  The Office will no longer accept paper designations.

If you already comply with the DMCA safe harbors and previously filed a paper designation, you will need to submit a new, electronic designation by the end of the year to maintain your compliance with the DMCA safe harbor.  Once filed electronically, the designation must be renewed every three years.

If you operate a website that links to other websites or allows users to post content but have not complied with the DMCA safe harbors, you may want to consider designating an agent with the Office and implementing the other required policies to gain the benefit of the DMCA safe harbors against copyright infringement claims.

Elizabeth M. Stamoulis
estamoulis@williamsparker.com
(941) 552-5546

Pink October: Be Careful That Giving Does Not Cause You Grief

single-ribbon-pink-1306036

For many years now, the arrival of October, which has been dubbed “Breast Cancer Awareness Month,” has been accompanied by an onslaught of pink products being sold to benefit various breast cancer charities.  This practice of selling products or services to benefit a charity (often referred to as a “commercial co-venture”) has become increasingly popular among business owners—in addition to the philanthropic goal of donating to a worthy cause, the use of the charity’s name will also often result in an increase in sales for the company.  Because these partnerships involve claims made to consumers regarding the recipient, and use, of the funds, many states have begun to regulate commercial co-ventures to ensure that accurate information is provided to consumers and that the money is ultimately used in the manner advertised.

Unfortunately, there is little uniformity among the regulations of the various states.  For example, some states require a written contract with the charity specifying exactly how the donation will be calculated.  In some cases, this contract must be filed with the state.  Other requirements may include registration with the state and furnishing financial statements to the charity and/or the state.  In each case, the regulations across the states differ with regard to whose responsibility (either the for-profit company or the non-profit company) it is to ensure that these requirements are satisfied.  Adding to the complexity is the fact that many sales involve the internet and interstate commerce, so commercial co-venturers may unintentionally, and unknowingly, subject themselves to the regulations of multiple states.

Entering into a commercial co-venture is a noble, but complicated, endeavor.  If you are considering entering into a commercial co-venture, you should take steps to ensure that you are complying with all applicable laws.  Some best practices include:

  • entering into a written agreement that grants a license to use the charity’s name in connection with sales;
  • including an honest disclaimer of the amount being donated (including any minimums or maximums) in advertisements and on the product;
  • keeping a detailed accounting of sales during the promotion; and
  • consulting with a lawyer to confirm all state-specific requirements are met.

Elizabeth M. Stamoulis
estamoulis@williamsparker.com
(941) 552-5546

Changes Affecting Continuing Care Communities

The Florida Legislature recently passed a bill, CS/HB 749, which implements certain changes in the operations of Continuing Care Communities (“CCCs”) in Florida, effective October 1, 2015.  Some of these changes include:

·     CCCs must be accredited by the Office of Insurance Regulation (“OIR”) without stipulations or conditions before OIR can waive statutory requirements.

·     Each CCC must establish a residents’ council created for the purpose of representing residents on matters set forth in the statutes.  Previously, the establishment of a residents’ council was optional.

·     Certain financial disclosures must be made to the president or chair of the residents’ counsel.

·     Several technical provisions are now required for resident contracts that are entered into on or after January 1, 2016.

These are just a few of the changes that are required for CCCs under the new laws.  The full text of the bill is available here.  For more information on how to make sure your CCC is ready for these new changes, please give us a call or email.

Elizabeth M. Stamoulis
Admitted only in New York
estamoulis@williamsparker.com
941-552-5546

Protecting Your Company’s Brand through Trademarks

Protecting your company’s trademarks is important to grow your brand and prevent other companies from trading off your hard-earned goodwill. Below are a few things to keep in mind when creating and protecting trademarks:

Choosing a Trademark

There are a number considerations when choosing your company’s trademark. Among other things, you should:

  • make sure that your mark will not infringe on an existing mark. Your trademark could infringe another trademark because it is spelled the same, looks the same, or even sounds the same.
  • consider choosing a more “distinctive” mark to receive a higher level of protection.
  • make sure that the domain name is available for purchase. Even if the trademark has not been registered, the domain name may be in use by another company.

Registration

The best trademark protection comes from registering the mark. Where you register will depend on where the trademark is used.

  • If the trademark is used for goods sent across state lines or services that affect interstate commerce, a federally registered trademark would provide the most complete protection.
  • If the trademark will only be used within one state, state trademark registration may be a simpler (and cheaper) alternative to consider.

Keep in mind that just because your company is registered with your state’s Secretary of State or because you have registered a fictitious name does not mean your trademark is automatically registered.

Protection

Once a trademark application has been filed and the registration has been received, you must have a plan in place to police your brand to make sure that others are not infringing it. If someone is infringing your trademark, this could lead to a loss of business or could affect your company’s reputation and its ability to fully protect its trademark.

Evolution

As your company evolves, so must your trademarks. As you create new products and services or expand the area of your business, you may want to create new trademarks or file existing trademarks in new jurisdictions.

These are just a handful of items to keep in mind for creating and protecting your company’s trademarks. Other forms of intellectual property protection for your company may also be available through copyright and trade secret protection. For more information on using intellectual property law to protect your brand, please give us a call or email.

Elizabeth M. Stamoulis
Admitted only in New York
estamoulis@williamsparker.com
941-552-5546