Twitter, Facebook and other social media accounts are an important part of the online identity of a business.  As disputes over ownership of social media accounts rise, businesses need to understand the implications of employees using personal social media accounts for the benefit of the business.

In the U.S., a number of recent court cases address ownership of an employee’s personal social media accounts that were used to promote their employer’s business as well as what rights an employer has to access those accounts:

1.  Access

Employers cannot intentionally access an employee’s personal social media accounts without authorization (even when that employee uses those accounts as part of their employment.)  Further, the employer should receive authorization to use those accounts and the extent of that authorization should be clearly laid out on paper.

2.  Personal Accounts Remain Personal

When an employee brings their personal social media accounts to a business the personal nature of those accounts, in many cases, does not change even though the accounts may be used to promote their employer’s business. Use of those accounts by an employer beyond authorization may constitute a false association of the business with the employee or violate state specific publicity statutes or common law privacy rights.

The Solution:  If possible, start fresh and create a new social media account and password for the employee. The password should be immediately changed when the employee leaves the company.  Where you must use an employee’s personal account, I recommend that the terms of such use be put in writing and that details the scope of use, access rights and ownership of the accounts and related content.  Alternatively, if the personal social media account is important to your business, consider purchasing it from the employee.

Startups, especially those at an early stage, focus on building a positive reputation among their users.  Unfortunately, different team members can harm your startup’s reputation – including the legal team when they police your trademarks!

I have noticed a growing number of negative consumer responses to otherwise standard trademark policing actions, primarily cease and desist letters.  Attempts to protect a brand now have the potential to generate negative consumer perception of that brand and may require a trademark policing strategy that considers consumer perception.  Trademark policing involves searching for (among others) unauthorized use of your trademark or trademarks that are confusingly similar to your own.  I must stress that trademarks must be policied.  However, in scenarios where trademark infringement or confusing similarity is extremely weak, I believe that your legal team should factor negative consumer perception into the decision to undertake policing action.

Consider these two questions when determining whether negative consumer perception will result from a policing action:

1. Size of market and consumer knowledge?

The potential for negative consumer perception is greater in a small market with informed consumers.

2. Size of enforcing party relative to allegedly infringing party?

The potential for negative consumer perception is greater in a David versus Goliath scenario.

In the sports world, two large companies recently undertook trademark policing actions against small, local companies with loyal consumer bases.  The result was an uprising of support from around the world for the small companies and substantial negative consumer perception of the large companies.

While policing trademarks is necessary, overzealous policing action may not be.  Startups should consider the impact questionable policing actions might have on their brand, balancing protection and consumer perception.

Solution:  keep in touch with your legal team and understand their trademark policing strategies.