Category Archives: Online Marketing

The Power of a Tweet

Though excellent tools for expression and brand marketing; a tweet can be a powerful method of expression. As the use of sites like Twitter and Facebook increase; it appears legal issues regarding what one posts are also on the rise. Laws and regulations about social networking are beginning to emerge as the legal system continues to see more cases involving defamation, fraud, and cyberbullying.

At a young age, many of us are often taught if you can’t say anything nice, don’t say anything at all. This simple life lesson is often disregarded in the digital age and the results of a post could prompt one to seek legal advice. Based on your post, you might find yourself in front of a judge! Even if you delete the tweet, it is most likely someone has retweeted or shared it. Prior to making a post, consider if it may be defamatory to a third party. Also, the terms of us for the site because the information you disclose might not belong to you.

There have been several cases in the media about online defamation. One of the most sensational involved Courtney Love (Gordon & Holmes v. Love, No. BC462438), who tweeted an alleged defaming statement about one of her attorneys. The attorney responded with a lawsuit against Love. At trial, Love stated she intended to send a private direct message; but inadvertently tweeted the information. The jury ultimately found in favor of Love.

Fraudulent Twitter (and Facebook) account cases are becoming more prevalent as well. Celebrities, businesses, and even the average person can be the victims of a fake Twitter account. These accounts can create problems if the anonymous owner posts information that can be interpreted as misleading, controversial or libelous. Twitter currently is in the spotlight for trademark infringement because the Estate of James Dean wants ownership of the Twitter account @JamesDean. James Dean, Inc., et al v. Twitter, Inc., et al, No. 1:14-cv-00183, notice of removal (S.D. Ind., Feb. 7, 2014).

Cyberbullying has become a hot topic with Twitter and other social networking sites. The sites are used in an intrusive manner to expose private information or even fraudulent information about a person in an effort to cause humiliation or mental harm. Megan Meier and Ryan Halligan are perhaps the most famous cases of cyberbullying because each ended in tragedy. As recently as January 2014, cyberbullying via social media had been implicated in the attempted suicide of a rape victim in Maryville, Missouri. In State v. Bishop, a North Carolina teen became the first person in Alamance County to be convicted under the new state cyberbullying laws. The case is currently under appeal.

Not all situations with tweets involve defamation, fraud or cyberbullying. Tweets are now being used as tools for employers to screen potential employees or make personal changes. Earlier this year, a young advertising executive lost her job because of an inadvertent tweet she posted as a joke prior to boarding a flight to Africa. Unfortunately her employer did not find it funny and she lost her job before her flight even landed.

The power of the pen is not a new concept to society; yet we should exercise more caution with online posts because the ramifications might be more than you expected.

If you need additional information about the impact of social networking communication, please contact Attorney Mark Ishman at the Ishman Law Firm at (919) 468-3266 or mishman @ ishmanlaw.com.

How Long Must a Phrase Be For Copyright Protection?

Only original work product is entitled to copyright protection.

The United States Supreme Court has stated that the level of creativity required for a work to be “original” is extremely low. A work satisfies this requirement as long as it possesses some creative spark, “no matter how crude, humble or obvious it might be.” Feist Publ’ns, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 345 (1991) (internal citations omitted). Thus, a work that originates from the author and contains any level of creative expression will satisfy the originality requirement. See id. Additionally, a copyrightable work is considered “fixed in a tangible medium” if it can be perceived, reproduced, or otherwise communicated for more than a transitory period, such as an email. See 17 U.S.C. § 102.

However, under the Copyright Act, “[w]ords and short phrases such as names, titles, and slogans” are not subject to copyright. 37 C.F.R. § 202.1(a).  When considering phrases, Courts must balance these factors in deciding whether words or short phrases are entitled to protection under the Copyright Act.

In Predator International, Inc. v. Gamo Outdoor USA, Inc., the plaintiff was attempting to enforce its alleged copyright registration for “unsurpassed performance.”  When considering this short phrase, a Colorado Federal District Court discussed in its opinion that other courts had found that short phrases, such as “Words Come Alive,” “Earth Protector,” “Chipper,” and “Retail Plus,” were not entitled to protection under the Copyright Act.  The Court then held that “unsurpassed performance” was also a short phrase that was not subject to protection under the Copyright Act.


If you are original work product that you would like to seek protection under the Copyright Act, or enforce your rights under the Copyright Act against a third party, please contact Internet Copyright Attorney Mark Ishman from the Ishman Law Firm, P.C. at (919) 468-3266 or mishman @ ishmanlaw.com.  Also visit Mark Ishman’s Internet Copyright law web page at http://www.ishmanlaw.com/internet-copyright-lawyer.php.

ARE YOU OFFERING THIRD PARTY SERVICES ON YOUR WEBSITE?

The practice of injecting third party service with recurring billing into a transaction has drawn the attention and anger of federal and state regulators. To address this concern, Congress enacted the federal Restore Online Shopping Confidence Act (“ROSCA”). The primary purpose of this law is to protect consumers from deceptive data passing among merchants. One form of deceptive date passing among merchants is when consumers unknowingly authorize a merchant to transfer his/her payment information to another merchant for a separate online sale without requiring the consumer to reenter his/her payment information and consent to the third party transaction.

To address this concern, ROSCA has two principal provisions to protect consumers, which are:

(1) ROSCA requires third party sellers to disclose to consumers the terms of their offer, and the fact that the third party seller is not affiliated with the merchant.

(2) ROSCA also requires the third party sellers to obtain “the express informed consent” for the charge by obtaining the account number, name and address, and a means to contact the consumer directly from the consumer, and requiring the consumer to check the box or perform some other affirmative act to indicate his/her consent.

ROSCA is intended to be enforced by the Federal Trade Commission and the State Attorneys General, but it does not rule out private enforcement in civil litigation actions.

As an automotive dealer, if you are offering any third party services via your website, you will need to make sure that your “check out” procedures and disclosures are compliant with ROSCA. Such third party services offered at your website could be financial, insurance, warranty, satellite radio, paint and other services related to the purchased vehicle.

If your dealership’s website is offering third party services to consumers, then it may make sense to conduct a legal website audit of your “check out” policies and disclosures to make sure that you are compliant with ROSCA. Otherwise if your dealership’s website is not compliant with ROSCA, you may draw the attention of the Federal Trade Commission, State Attorneys General and civil plaintiff lawyers.

Mark Ishman is the founding attorney of the Ishman Law Firm, PC. You can reach Mark at: (919) 468-3266 or mishman@ishmanlaw.com. For additional information on this topic as well as other related topics, please visit www.IshmanLaw.com and www.IshmanLegal.com.

Legal Marketing Issues for Today

It is safe to say that most, if not all, potential customers utilize the Internet during their shopping process. This includes locating businesses, their products/services and customer reviews on the Internet after watching, hearing or viewing targeted advertisements.

In targeting potential customers, today’s modern businesses have invested heavily in their individual websites and virtual billboard advertisements such as pay-per-click and banner advertisements. Today’s businesses have also used Internet-based communications such as e-mails, instant messaging and Tweets™ to advertise their products and services, and have paid particular attention to the way Internet users locate the products/services in which they are interested.

With today’s new marketing opportunities come new risks as the changing law adapts to the evolving use of technology for commercial transactions. This article is intended as an overview of the many legal marketing issues the Internet raises for the modern business, and identifies new areas of law that Business Wealth Lawyer can provide advice and counseling.

Advertisement in the New and Evolving Media

As a modern business, you are spending hundreds, if not thousands, of dollars in your print, radio, television and online advertisements. Additionally, your investment in advertising naturally has developed your “branded” identity. As a result, all forms of your advertisements, website content and brands are your intellectual property, and they can be protected by obtaining federal copyright and trademark registrations. Not only do such Intellectual Property registrations add value to your business’ net worth, but they also can prevent, or quickly resolve, unfair and deceptive practices by a competing dealership that utilizes your copyrighted ad content or trademarks to compete against you. If you are spending hundreds of thousands of dollars in television, radio, Internet or print advertisements, a Business Wealth Lawyer can assist you in securing your intellectual property rights in order to add value to your business’ net worth and deter your competitors from unlawfully using it to compete against you.

Keyword Advertisements

As a modern business, you are also targeting your potential customers by using the same search engines those potential customers use to find information about their desired products/services and your business on the Internet. Internet search engines, such as Google®, bing™ and Yahoo!®, assist vehicle buyers in locating specific websites that have information about their desired products and services by displaying a list of sites that contain search terms or “keywords” entered by the potential customer. The order in which the listed websites appear takes on particular importance in light of the view that only the top few sites on the first page of the search results will be visited by potential customer. As a result, today’s modern businesses are utilizing online search marketing techniques that focus on increasing the likelihood that their specific websites will appear near the top of generated search results.

Used properly, online search marketing techniques can directly increase the number of visitors to, and sales by, your business. However, when these techniques are used improperly, they can cause your business to lose sales or impose liability upon it. This occurs when a business or competitor, utilizes another trademark, slogan or “catch phrase” as a keyword in its online search marketing techniques. Such unclean online search marketing techniques can result in liability for trademark and copyright infringement, unfair and deceptive business practices, fraudulent misrepresentation and intentional interference with contractual and business relations.

This unlawful activity typically happens in pay-per-click advertisements where one of your competitors pays Google® a fee each time their ad is displayed as a search result when the potential customer was searching for your business. If you believe that you are a victim of this type of activity, or similar unfair and deceptive practice, a Business Wealth Lawyer can assist you in stopping it and address the damages that you suffered as a result of such unlawful activity.

IF YOUR BUSINESS IS FACING ANY OF THE ABOVE IDENTIFIED LEGAL ISSUES, OR IF YOUR BUSINESS DESIRES TO BE PROACTIVE AND IMPLEMENT STEPS TO AVOID AND/OR MINIMIZE FUTURE RISKS, PLEASE CONTACT A BUSINESS WEALTH LAWYER.

Call our office today to schedule an Online Assessment of your business, and if you mention this article by name, we will waive our customary initial consultation fee. Be sure to use this opportunity to ensure that you are receiving the maximum benefit of your online advertisements. Call (919) 468-3266 or email mark@ishmanlegal.com. For additional information on this topic as well as other related topics, please visit www.IshmanLaw.com and www.IshmanLegal.com.