With the continued rapid proliferation of social media, the legal implications of instant, online communication are a growing issue for companies wanting to maintain control of their brands online. 

That was the topic of our recent #ConnectChat, which took place Tuesday, Oct. 11, on Twitter. Darin Klemchuk, senior partner with Klemchuk Kubasta, a leading intellectual property and trademark law firm in Dallas, discussed how companies can protect their brands on social media, how brand owners can monitor social media, social media policies for employers, and more.

Following is a recap of the chat:

ProfNet: Hello, and welcome to #ConnectChat! Our topic today is the legal implications of social media for brands and employers. Our guest speaker is Darin Klemchuk (@KK_LLP), senior partner with Klemchuk Kubasta, a leading IP and trademark firm in Dallas. Darin, thanks for joining us today!

Klemchuk: Thank you for having me and indulging me in my first Twitter chat

ProfNet: I’ll start off with a few questions, and then I’ll open it up to everyone else. We know most brands should have some sort of social media presence, but most don’t consider the legal implications. What are some of the issues they need to consider?

Klemchuk: One of the key things to consider is proactive registration of brand names in social media to prevent third-party use. It is often far easier to register and stake a claim to a user name or handle that incorporates a brand's trademarks than it is to fight about the user name or handle after a third party has registered one. If a third party hijacks a brand, the results can be disastrous and the damage can be done before the legal action is taken.

ProfNet: So it really requires a lot of foresight on the brand's part, even if they're not currently involved in social media, right?

Klemchuk: Yes, part of a product launch or branding strategy should include searching social media and staking out usernames before launch.

ProfNet: What else should brands consider when using social media?

Klemchuk: Monitoring others' uses of a company's key trademarks and brands is very important. The enormous numbers of users provides an unprecedented opportunity for confusion as a result of trademark infringement. The large number of social media users heightens the damage that can be caused by trademark infringement. This is made worse by the quick and uncensored communications in social media through which one company can pass itself off as another. The speed of communicating makes it easier for one company to pass itself off as another via social media and confuse the public. It is better to monitor your key marks and brands so you can take quick proactive action.

ProfNet: Whose responsibility is it to monitor social media for trademark/brand use: the legal department? PR? Marketing?

Klemchuk: It’s best to start with the marketing or PR department, since they are likely already monitoring social media activity. Obviously, trademark monitoring is a function of the legal department. Some companies outsource this responsibility to their outside counsel. That is a good option, as well.

ProfNet: What are some of the ways companies can monitor social media for trademarks and brand mentions?

Klemchuk: An automated Google or other search-engine search is one way to monitor use. Searching the various social media is another way it can be done.

ProfNet: What about promotions and contests? We see a lot of those on social media. What are some concerns there?

Klemchuk: A couple big ones. The first has to do with state laws. Many states have specific rules on sweepstakes and promotions that could include simple giveaways. Because social media is national, you need to be careful that giveaway programs don't violate one of these laws. Another concern with promotions and contests is who owns fan-developed content. Some companies have run promotions inviting fans to create ad campaigns or other marketing materials. Without a written document from the fan assigning copyrights to those materials, there can be an issue of use/ownership. Care should also be taken not to include any third-party authored materials in promotions. That can cause copyright problems as well.

@Emily_Summey: How can a company keep up on all of these laws?

Klemchuk: I recommend finding an attorney that specializes in that area. They will be up-to-speed on those developments and can quickly review materials. There are treatises on this area of state law that are helpful. But I usually ask a specialist in this area.

ProfNet: If someone needs a specialist, what should they look for?

Klemchuk: I would ask the lawyer point blank if they specialize in this area and how much time it will take to review a promotion. Someone that specializes in this area should only take 2-5 hours to review an average sweepstakes rules document. More than that and they need to get up-to-speed as part of the project. It’s best to find someone who is a true specialist. Googling for specific terms like "sweepstakes lawyer" or the like is probably the best starting point. Important caveat: This is for discussion purposes only and I am not giving out legal advice.

@Emily_Summey: Should small businesses weigh the risk of attorney fees vs. potential violation consequences for running promotions? Or just skip the promotion?

Klemchuk: Emily, you are right on. Costs must be weighed against risk. But it is a chicken-and-egg problem. Without talking to a lawyer, it is hard to know the risk to weigh against the cost.

ProfNet: Another issue for companies is when their employees are active on social media. What are some of the concerns there?

Klemchuk: One concern is retaliatory firing claims based on employee posts in social media. Example: Employees complain about working conditions and safety in an online posting; the company finds it and fires them. The National Labor Relations Board has taken a number of employers to task over that type of firing. Other problems include the same type of potential problems that workplaces have traditionally had. With social media, that awkward comment at a company picnic or private conduct in the workplace can be exposed to the world. Also consider that the hostile work environment can be expanded to social media, raising more concerns for employers.

@dfwbrett As a blogger, I'm concerned about citing sources. Do I have to link, or can I just reference the author/publication/article?

Klemchuk: You point out a sticky issue. There have been a number of lawsuits against bloggers for copying others materials. Some of those cases involved attribution to the author. I would be very careful with that.

@dfwbrett Even if they reference the article -- "so-and-so from smashing magazine said in July that..."? So where's the line?

Klemchuk: Generally, the less you quote, the less chance of a problem. Keep in mind I tend to be a pessimist about risk.

@JenMBAPR: Where can I get information that should be included in employee manuals on social media communications?

Klemchuk: Shameless self-promotion alert: A great place to find materials on social media policy is lawyers like our firm. Another good resource is the Word of Mouth Marketing Association, which has a model social media policy.

@JenMBAPR What concerns should an employer have when an employee tweets or posts on Facebook?

Klemchuk: Common ones include misstatements or puffery. Many will be surprised that the FTC regulates certain statements. Employee posts/tweets regarding a company's products can be considered endorsements by the FTC, which are regulated. False endorsements/puffed-up reviews have led to some companies being sued for false advertising/trade practices. Both these problems, as with others I mentioned, can be managed through a social policy as part of the overall employment manual.

ProfNet: That’s all the time we have today. Darin, thanks so much for being our guest, and for all the great info!