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Gardere has a national and international energy practice formed around our Energy Industry Team, which is a multidisciplinary group of approximately 60 attorneys with diverse backgrounds, experience and skills specific to the energy industry. Our team includes attorneys who have served as in-house counsel for major energy companies, providing a depth of insight into our clients' needs, issues and concerns. We understand and regularly practice in virtually every sector of the energy, and we represent a wide variety of industry participants from multinational corporations to individuals.
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Social media sites such as YouTube, Twitter and Facebook present significant opportunities for individuals and businesses to communicate to extensive numbers of people in ways never before envisioned. Facebook, for example, currently boasts more than 350 million users and conservative estimates show at least 18 million Twitter users. These numbers are only expected to increase over time.
While these sites present tremendous growth opportunities for businesses, they have sparked a flurry of activity among intellectual property (IP) owners who are scrambling to find ways to safeguard their valuable assets. While the title of this alert may appropriately describe the reaction of an IP owner upon discovery that it has been victimized on a social media site, there is no need to panic.
There are various tools available to the IP owner to address abusive situations. Naturally, the first question an IP owner must ask is "how much of this can I take?" When the answer to that question is "no more," the owner is invited to turn to this alert – which is intended to serve as a practical guide and resource for navigating through social media sites' procedures that enable IP owners to address infringing situations. While this alert specifically focuses on the current policies and procedures of YouTube, Twitter and Facebook, the general principles and tips provided below will be applicable to other social media sites as well.
A few points to keep in mind. The IP owner always has at its disposal the option of pursuing formal legal remedies, such as initiating a lawsuit, to protect its valuable IP assets. But given the significant expense, resource and time commitments associated with litigation, the IP owner would be well-advised to consider, at least as a first option, utilizing the dispute-resolution procedures set up by the specific social media site.
Remember that each social media site (such as Facebook and Twitter) is run by a company – not the government, not a court. Because these are different companies, their procedures and policies for addressing abusive situations, while similar, are not the same. The different policies and procedures do, however, echo a common theme of "self-interest" in that each company does not want to be sued by IP owners over infringing content. Clearly, it is in the companies' best interest to work with IP owners to address acts of infringement occurring on their sites.
If a site fails to act after being put on notice of the infringing activity, the social networking site runs the risk of being charged with being complicit in the infringement. This provides a significant advantage to IP owners and certainly increases the chances of getting the issue resolved quickly.
Anytime there is an open forum inviting expression, such as with YouTube's "self-broadcasting" site, this increases the potential for abusive situations. Of course, despite YouTube's encouragement to patrons to "Broadcast YourselfTM," You Tube recognizes that certain "expression" is not permitted, especially when that expression trades on others' rights. In fact, YouTube expressly states in its Terms of Service that it "does not permit copyright infringing activities and infringement of intellectual property rights on its Website" and, if such activities take place, YouTube will remove any infringing content from the site. Granted, most social media sites state in their Terms of Service that the company reserves the right to make the call whether content is infringing or not and reserves the right to remove (or not remove) the complained-of content. With that said, more often than not, if the content looks to be infringing (even if it is a close call), the company is going to remove the content due to the threat of being sued if wrong.
As such, if an IP owner finds someone else trading on its rights on a social media site, the owner should take immediate action. The IP owner has spent years and resources developing these rights, and while it may be inconvenient for the IP owner to go through the process to correct the wrong, it must be done.
The first step that the IP owner will want to take is to set up an account with the social networking site. In most cases, this is a free service, and usually necessary in order to utilize the provider's dispute mechanisms. The next step will be to determine under which "category" the abusive conduct fits. As an example, if someone posts on YouTube a video that is a copy of the IP owner's video, that is a copyright violation, and the rules set out for addressing copyright violations must then be followed.
On the other hand, if someone uses the IP owner's brand name or company identifier as a user name, or in such a way as to cause confusion among consumers, that is a trademark issue and the trademark rules set out on the particular site must be followed. Due to the relatively recent passage of the Digital Millennium Copyright Act (DMCA) – which gives online providers certain protections if specific rules are followed, such as designating a specific "copyright agent" to receive complaints – more sophisticated social media sites will likely have a specific section in their Terms of Service for addressing copyright disputes. This does not mean that the company will not entertain requests to address other forms of IP disputes, such as trademark and rights of privacy issues. It just means that the procedure for addressing non-copyright disputes often will be buried within the Terms of Service, and may be difficult to find.
As an example, YouTube provides under the heading "Copyright Infringement Notification," a questionnaire asking "What is the issue?" Depending on what box is checked (e.g., privacy, trademark infringement, copyright infringement, inappropriate content [nudity, violence], abuse/harassment, rights of publicity issues, etc.), the IP owner is directed to the specific section of YouTube's website which addresses the specific type of infringement.
On Twitter, "You are what you Tweet." That means, "What you say and do on Twitter can and will be used against you." There is a growing trend for not only individuals, but also businesses, to use social media sites such as Twitter and Facebook as means for connecting with business prospects. Like YouTube, Twitter devotes a specific section of its site to copyright violations (see "Copyright Policy"), including designating a specific "Copyright Agent" to receive DMCA requests in accordance with a specific DMCA procedure.
One of the most common violations occurring on Twitter's site relates to trademark and business name squatting. According to Twitter's Trademark Policy, any use of a company's business name, logo, or other trademark-protected material in a way that may mislead or confuse (even if it does not rise to the level of technical "trademark infringement") constitutes a trademark violation. In most cases, Twitter will work with an account owner to remove the infringement and will allow the account holder to keep his or her account. But Twitter reserves the right to permanently suspend an account if Twitter determines (in its discretion) that there is a "clear intent to mislead people."
If the IP owner has a Twitter account, it can use Twitter's "support ticket" system to report trademark violations. As an alternative, abusive situations can be reported by sending an e-mail to firstname.lastname@example.org along with the following information: (1) Username of the violating account (or the URL to their profile page), (2) Company name/Company Twitter account (if applicable), (3) Your First and Last Name, (4) Title, (5) Address, (6) Phone, (7) Fax, (8) Company domain address; (9) Contact's company domain email address, (10) Trademark registration number (if applicable) and (11) the requested action (for example, removal of infringing account, or transfer of trademarked username to an existing company account).
When an individual or business signs up for a page on Facebook, the user agrees to Facebook's Statement of Rights and Responsibilities in which the user agrees, among other things, not to "post content or take any action in Facebook that infringes or violates someone else's rights or otherwise violates the law." In this agreement, it is acknowledged that Facebook "can remove any content or information" if Facebook believes it violates provisions of the Statement. Like the YouTube and Twitter policies described above, Facebook provides separate mechanisms for reporting copyright and non-copyright infringement issues. For copyright infringements, the IP owner is directed to fill out and submit an automated DMCA form. For all other types of infringement, a different form must be filled out and submitted (available via this link) .
In connection with Facebook's recent policy change toward User Names, Facebook has developed a specific form used to report infringing user names.
Naturally, it is in the best interest of the provider to act quickly, but as is the case with many providers, oftentimes, "quickly" can take some time. Facebook provides on its website that "so long as everything appears to be in order, we will promptly remove or disable access to the [infringing] content." To this end, IP owners are encouraged to be diligent in following up with the providers to make sure that their requests are being addressed.
While the advent of social networking sites has created an additional arena IP owners must police for infringing activity, there are cost-effective tools provided by social media provider websites to assist IP owners in protecting their rights. IP owners would be well-advised to implement internal procedures for monitoring the content of social networking sites, for example, by periodically searching these sites for "keywords" attributable to the IP owner or its company. If the IP owner finds itself in a situation involving abusive conduct by others, the IP owner should take immediate action. As set out above, this involves informing the provider of what IP rights are infringed and how the content infringes those rights. The dispute mechanisms provided by these providers are excellent, cost-effective ways of protecting an owner's valuable IP rights. If the issues cannot be resolved by using these mechanisms, the IP owner may be forced to pursue other legal remedies, but such measures should only be resorted to after fully utilizing the specific dispute procedures set out by the providers.
For assistance with regard to protecting your intellectual property, contact Kay Lyn Schwartz (email@example.com or 214.999.4702), Jason R. Fulmer (firstname.lastname@example.org or 214.999.4487), or your other Gardere counsel.
The publications contained in this site do not constitute legal advice. Legal advice can only be given with knowledge of the client's specific facts. By putting these publications on our website we do not intend to create a lawyer-client relationship with the user. Materials may not reflect the most current legal developments, verdicts or settlements. This information should in no way be taken as an indication of future results.
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