Small Business and IP: 5 Issues You Might Not be Considering (But Should!)

(Tech Start-Up Legal Issues 3: Guarding Your IP Assets by Bloomberg Law)

It is often said that the success or failure of a technology startup can hinge on the protection of its intellectual property.

But tech startups are not the only businesses with IP concerns. In today’s digital age, all small business owners and entrepreneurs need to have a solid understanding of how intellectual property rights can protect – or derail – their business efforts.

For your reference, here’s a look at five issues that really should be on your radar:

1. Ownership of social media accounts:

“PhoneDog sued Kravitz, asserting claims for misappropriation of trade secrets … based on his use of the PhoneDog handle and his retention of the Twitter account’s followers… Having effective social media policies in place for employees would help to avoid a situation like the one faced by PhoneDog… But when a company’s trademark is used by an unauthorized party in a Twitter account, a trademark owner has several options.” (Who Owns a Company’s Twitter Account (and Musings on Social Media and Trademarks)? by Mintz Levin)

2. Trade secrets and employee theft:

“… the Ninth Circuit filed its opinion in United States v. Nosal, holding that a former employee cannot be held criminally liable under federal law for receiving confidential company data and information from his former coworkers in violation of company policy… In this case, Nosal left his employer and then convinced some of his former coworkers to join him in starting a competing business. These coworkers, who were still working for the employer at the time, accessed confidential company information and sent it to Nosal, flouting the employer’s policy.” (Former Employee Cannot Be Charged Criminally For Violating Company Computer Policy by Proskauer)

3. Fair use of copyrighted material:

“The fair use analysis, which determines whether social benefit is greater than private loss [due to copyright infringement] … can really be distilled into three questions:

  1. Was the use of the copyrighted material for a different purpose, rather than just reuse for the original purpose and same audience?
  2. Was the amount of material taken appropriate to the purpose of the use?
  3. Was the use reasonable within the field or discipline it was made in?

If the answer to these questions is yes, then a court would likely find the use of the copyrighted material fair.” (Pinterest, Thy Name is Fair Use by Winthrop & Weinstine, P.A.)

4. Trademarks and website meta tags:

“Including a competitor’s trademarks or website in the meta tags for your website can result in claims of trademark infringement. Based on a recent decision of a federal court in Oregon, it could also result in your being subject to personal jurisdiction in the competitor’s forum.” (Use of Competitor’s Trademarks as Meta Tags is Basis for Personal Jurisdiction by Miller Canfield)

5. Trademarks and online advertising:

“Just when you thought it was safe to bid on competitors’ trademarks as keywords — provided you played it smart, and didn’t put trademarks in the actual text of your sponsored ad except under certain limited circumstances — comes the Fourth Circuit’s decision [to remand and reverse the core claims] in Rosetta Stone v. Google.” … As a practical matter, the opinion injects a bit of uncertainty back into the keyword game that will last for years to come. (Google AdWords Appellate Decision Injects Some Uncertainty Back Into the Keyword Game by Foley Hoag LLP)

Find additional Intellectual Property Law updates on JD Supra>>