Court Ruling Offers Mixed View of Boss’s Access to Facebook

“I’m the Boss.  What can I see?”

As I represent employers of many different industries and of all business sizes, I am frequently asked to keep clients up to date and informed on new policies and court rulings that might affect their rights to access employee social media.  Technology and Social Media Sites have become increasingly influential not only in our private lives but our work environments as well.  So what can the Boss access?

The answer is slowing evolving and though anything less than clear, privacy is a key theme in a recent case from a U.S. District Court, that makes a distinction between private and public usage of social media sites such as Facebook.

After paramedic, Deborah Ehling was suspended from her job at Monmouth Ocean Hospital Service Corp. (MONOC), for a Facebook post the corporation disapproved of, Deborah took the company to court. Deborah was being penalized for having criticized Washington D.C. paramedics about the manner in which they handled the fatal shooting at U.S. Holocaust Memorial Museum. Part of Ehling’s post read:

“I want to say 2 things to the DC medics. 1. WHAT WERE YOU THINKING? and 2. This was your opportunity to really make a difference! WTF!!!! And to the other guards….go to target practice.”

MONOC viewed this post as “a deliberate disregard for patient safety.”

Deborah’s Facebook posts were “private’ in that they were only posted to be available to her Facebook “friends”, not the public at large.  But the post was leaked to management by Tim Ronco. Ronco was Deborah’s  colleague and Facebook friend. He would snap screen shots of Deborah’s postings and without solicitation, he would send them over to management. After management received the snap shots they were sent to Stacy Quagliana, executive director of administration at MONOC.

Private Posts are Private – Sort of.

The court did rule that Deborah’s postings were private under the Stored Communications Act, and thus they were protected. However, authorized viewers of Deborah’s posts, including her Facebook friends, could share the postings with whomever they wished. Furthermore, Ronco was not obligated by any person or persons of authority to share such information. He did so freely and of his own will. Thus, the court ultimately ruled in favor of Monmouth Ocean Hospital Service Corp. Digital privacy lawyer, David Straite, eloquently stated, “The court said there’s no liability because she authorized the spy to see the posts.”

Because no information was coerced from Ronco, MONOC was not liable for invading Deborah’s privacy.

Liability in this case was “one step short of coercion.” Had MONOC consciously sought to invade Deborah’s privacy they would have been liable for lawyer fees and punitive damages.

The takeaways from this case are many, but include:

  • Employees – Don’t think your “private” Facebook “Friend’s Only” posts are private.  They are not.  Any friend authorized to read your post is free to republish your post.  The recipient is then free to act on that post.
  • Employers – You may read and act upon, but do not demand or take by coercion, your employees’ private Facebook posts.

Employee Policy Manual provisions – or employment agreement clauses – clearly delineating Social Media rights and duties may be helpful in providing clarification to both workers and bosses over what can and cannot be accessed and used in the world of Social Media.

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What Might it Cost to Register Your Trademark?

TRADEMARK REGISTRATION COSTS

A frequent question I receive from both existing and prospective new clients, asks for a ballpark estimate on the amount of time obtaining a trademark will take.

This is a pretty broad question and leads to a potentially complex answer.

While time estimates are always dependent on the specifics of each case, there are some general guidelines that can help focus the time estimate.

The time estimate derives from the process.  We outline the process based on several phases of activity, summarized as follows:

  • First, We need to consult with the client. This usually takes at least one (1) or two (2) hours, but can take much more time depending on the client’s specific needs and activities.  The consultation process allows us to determine exactly what the clients proposed trademark is and what classification and description of goods and services will apply. This information not only helps define the scope of legal services, it also establishes the scope of the trademark search report which is obtained in phase two.
  • Second, In phase two we order and obtain a comprehensive trademark search report. We allocate approximately one (1) hour to the report ordering process.  The report typically costs Six Hundred Fifty Dollars ($650.00). This report surveys not only the registrations contained in the United States Patent & Trademark Office database but also reviews all state trademark registration databases, all internet usage and all common law usage throughout the United States.
  • Third, Phase three involves a review of the report which typically takes anywhere from two (2) to four (4) hours, or more, depending on the amount of information contained in the report.
  • Fourth, Phase four contains an additional consultation with the client wherein the results of the report review and analysis are discussed and explained. This process will usually range from one (1) to three (3) hours depending on the extent of potential conflicts gleaned from the report. The analysis may be discussed with the client verbally or it may be memorialized in a written letter when appropriate.
  • Fifth, Phase five is to draft the actual registration application and to submit it electronically at the USPTO. This process takes from one (1) to two (2) hours depending on the extent to which the client furnishes the necessary information that must accompany the application. For example, images of the mark used on the goods or in the connection with the delivery of services must be furnished and samples of any symbol or logo marks must be provided in accordance with the USPTO’s specific criteria.
  • And, Finally, we must allocate costs for the filing fee for registration in a single class.  The USPTO fee for a single mark registered in a single class is currently about $350.00.  (This varies slightly based on the type of application used for the registration process)  The fee is increased, of course, where multiple classes are included in the scope of the application.

From this, a typical trademark registration project can range of anywhere from Three Thousand Two Hundred to Four Thousand Five Hundred Dollars ($3,200-$4,500) for budgeting and cost projection purposes. It should be kept in mind that these cost projections can be off by an order of magnitude of fifty percent (50%) or more. Thus, for example, in very simple and straight forward matters an application can be completed for One Thousand Five Hundred Dollars ($1,500). At the same time, in more complicated matters total fees and costs through and beyond submission of the trademark application can reach or exceed Ten(s) of Thousands of Dollars. Registrations encompassing large portfolios of marks, or registrations covering foreign jurisdictions can cost tens or even hundreds of thousands of dollars.

It is important to keep in mind that filing the application really only begins the review and approval process. The examining attorney might issue an office action that must be dealt with. This action might be resolved with as little as a thirty (30) minute phone call or the action might require multiple hours of research and drafting time to respond to and resolve potential impediments to registration.

Likewise, a third party can file an opposition to the registration after it is approved by the examining attorney and published. Opposition proceedings can turn into litigation matters costing tens of thousands of dollars and taking months or years to resolve. On the other hand, an opposition matter can sometimes be resolved expeditiously with a mutually acceptable, co-existence agreement, negotiated between the parties and implemented with very little effort and work. These are unknowns that ultimately drive the total cost of the project and cannot be fully anticipated at the outset.

Even after the trademark is successfully registered, ongoing maintenance and periodic required filings require an on-going budget to keep and preserve the mark.

Generally, a client seeking a trademark should ask about and establish a clear budget for the process at the beginning of the engagement.  Many firms require an advance retainer deposit of some negotiated amount as a threshold matter to accept a new engagement.

Clients should also be aware that the trademark related discussion typically leads to other areas of legal services needs. For example, the creation of business entities, the creation of contracts and assignments, non-disclosure agreements, lending arrangements, licensing arrangements, copyright protection and trade secret protection, all relating to the underlying business that gave rise to the trademark registration inquiry.

The above discussion is for illustrative and discussion purposes only.  It does not constitute an estimate for any actual or particular client matter.

No legal representation is accepted by the author except in accordance with a written client specific fee agreement.

For potential representation inquiries, please feel free to contact our office for further information.