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Bread & Kaya: Using Facebook’s marks for your business

Using Facebook’s marks for your business
Foong Cheng Leong
May 28, 2013

– To use a trademark (like a logo) legally, one must seek permission from the proprietor of the trademark
– You can use Facebook’s trademarks without asking for express permission provided you satisfy its brand guidelines

Bread & Kaya by Foong Cheng Leong

UNKNOWN to many people, using someone’s trademark, in particular a logo, can potentially amount to trademark infringement, passing off, and copyright infringement. To use it legally, one must seek permission from the proprietor of the trademark.

History has indicated that most brand owners jealously guard their trademarks from being used even if the use would benefit them in a way.

But for Facebook, you can use its trademarks without asking for express permission provided that you satisfy its brand guidelines.

In April 2013, Facebook updated its Facebook Brand Resources page with a specific website, Facebookbrand.com. The website has specific guidelines about how to use its logos and screenshots in print, film, broadcast and online, and how to treat the social network’s brand.

The website sets out a list of Dos and Don’ts on the website. Under the Don’ts section, you cannot:

– Use the Facebook brand in a way that implies partnership, sponsorship or endorsement
– Combine any part of the Facebook brand with your name, marks or generic terms\
– Use trademarks, names, domain names, logos or other content that imitates or could be confused with Facebook
– Present Facebook in a way that makes it the most distinctive or prominent feature of what you’re creating
– Use any icons, images or trademarks to represent Facebook other than what is found on its resource centre
– Assert rights over the Facebook brand whether by trademark registration, domain name registration or anything else
– Feature Facebook on materials associated with pornography, illegal activities, or other materials that violate the Facebook Terms
– Modify Facebook brand assets in any way, such as by changing the design or colour
– Use Facebook’s trade marks on merchandise or other products such as clothing, hats or mugs. In certain circumstances you can use the ‟f” logo on product packaging, but you need to follow the guidelines of use.
There is also a FAQ for advertisers, developers, publishers, filmmakers or anyone who intends to use the company’s name, logos or images in their work.

The website sets out five types of Facebook logos and badges. Each logo or badge comes with general and specific rules. For example, you can use the ‘f’ logo to refer to you, only use the ‘f’ logo to refer to your presence on Facebook, such as your Page, timeline, group, app or event, but you cannot modify the ‘f’ logo in any way, such as by changing the design or colour.

If you wish to use it for film or broadcast, you must request permission and include, among others, the portion of the commercial, film, program or storyboard that references Facebook. For more information, visit https://www.facebookbrand.com/.

On the other hand, setting up a brand guideline to allow other people to use your mark is a form of passive advertising.

By allowing other people to use your brand, it is a form of a licence. Rules must be implemented to ensure that your brand is not used in a disparaged manner.

When writing your brand guideline, do consider the following:

– What are the brands being licensed?
– Are there any territorial restrictions? (E.g., can only be used in all countries except X countries.)
– What are the circumstances where you can terminate the license immediately?
– What are the restrictions that you impose on the use? (E.g., cannot use on your competing services/ goods, not on websites with adult, racist or hateful content).

Facebook is not the only social media networking site to allow you to use its marks. Twitter and LinkedIn also have their own brand guidelines to follow.

Do take a read on using other people’s marks or draft your own brand guidelines!

First published in Digital News Asia on 28 May 2013.

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Bread & Kaya: Attention e-commerce businesses: Fraud, the law and you

My Bread & Kaya’s second column was published on Digital News Asia on 29 January 2013.


Attention e-commerce businesses: Fraud, the law and you
Jan 29, 2013

– A new law to protect users of online trading portals goes into effect July 1
– While it may cost them a bit, operators of such businesses will have to comply

Bread & Kaya by Foong Cheng Leong

E-COMMERCE is booming in Malaysia. Euromonitor International estimated that Internet retailing in Malaysia reached RM842 million (US$268.3 million) in 2011; Goldman Sachs forecasts that e-commerce in Malaysia is projected to hit RM3.4 billion (US$1.1 billion) this year with a 30% year-on-year growth.

Notwithstanding such growth, online fraud is rampant in Malaysia. If you scour our online auction or listing websites, you’ll find many dodgy sellers and buyers selling or offering to buy products and services.

But the long arm of the law recently caught Mohd Yunus Jan Muhammad for approaching six victims who had advertised to sell their gadgets through an Internet trading portal, by posing as a customer and setting up appointments. At these meetings, he would grab the merchandise and flee. He was sentenced to one year’s jail. The Court also fined and imposed a whipping on Mohd Yunud.

Sometime in 2011, the Ministry of Domestic Trade, Co-operatives and Consumerism proposed that the Electronic Commerce Act 2006, an act that regulates online commercial transactions, be amended to regulate the online market place industry. I am told that consultation was held with the industry and I understand that some industry players had taken steps to lobby against the amendment.

In April 2012, its minister Datuk Seri Ismail Sabri Yaakob announced that the amendment would ensure that electronic transactions could be done in a safer and secured environment.

The law came about in the form of the Consumer Protection (Electronic Trade Transactions) Regulations 2012 (“Regulation“), a regulation under the Consumer Protection Act 1999.

The Regulation will be in force on July 1, 2013. Under this Regulation, an online marketplace operator is required to, among others, provide their full details, terms of conditions of sale, rectification of errors and maintenance of records.

The new law applies to two (2) types of persons namely:

– A person who operates a business for the purpose of supply of goods or services through a website or in an online marketplace (“Online Business Owner“). “Online marketplace” means a website where goods or services are marketed by third parties for the purpose of trade. This may include your typical blog shops and sellers with accounts with eBay, Lelong and Mudah online stores.

– A person who provides an online marketplace (“>Online Marketplace Operator“). This may include group buying websites operators such as GroupOn, auction and listing websites such as eBay, Lelong and Mudah, and online shopping websites where third party products as sold such as Zalora.

Online business owners

Under the Regulation, Online Business Owners shall disclose on the website where the business is conducted and the following information, failing which the operator commits an offence.

  • The name of the person who operates a business for the purpose of supply of goods or services through a website or in an online marketplace, or the name of the business, or the name of the company.
  1. The registration number of the business or company, if applicable.
  2. The e-mail address and telephone number, or address of the person who operates a business for the purpose of supply of goods or services through a website or in an online marketplace.
  3. A description of the main characteristics of the goods or services.
  4. The full price of the goods or services including transportation costs, taxes and any other costs.
  5. The method of payment.
  6. The terms and conditions.
  7. The estimated time of delivery of the goods or services to the buyer.

Any person who discloses or provides the above information that he knows or has reason to believe is false or misleading, commits an offence.

Online Business Owners shall also:

  • – provide the appropriate means to enable the buyer to rectify any errors prior to the confirmation of the order made by the buyer; and
  • – shall acknowledge receipt of the order to the buyer without undue delay.

The order and the acknowledgement of receipt shall be deemed to have been received by the person who operates a business for the purpose of supply of goods or services through a website or in an online marketplace and the buyer, respectively, when the person and the buyer are able to access to such order and the acknowledgement of receipt.

The Online Marketplace Operator shall take reasonable steps to keep and maintain a record of the names, telephone numbers and the address of the person who supplies goods or services in the online marketplace, for a period of two years, failing which an offence is committed.

In addition to the terms and conditions, Online Business Owners and Online Marketplace Operators must comply with the Notice and Choice Principal provided by Personal Data Protection Act 2010 by inserting a privacy notice, in the National and English languages, on their website before the collection of any personal data.

Extra costs for businesses

Although this law seeks to protect consumers from unscrupulous traders, the introduction of this new law increases the startup costs and cost of operation of an e-commerce business.

Engaging lawyers to draft terms and conditions for e-commerce businesses can be expensive. But it is something any e-commerce business should invest in to protect themselves and their users.

The new law doesn’t specify in detail how the terms and conditions should be. Therefore, one can have a very simple set of terms and conditions.

Alternatively, one may opt to adopt the terms and conditions of other e-commerce businesses provided that one is well versed in drafting and amending agreements. But one should take note that every set of terms and conditions is customized for specific businesses.

It would be ideal if we have affordable online services to draft terms and conditions and privacy policies for SMEs (small and medium enterprises) like SnapTerms, which allows start-up companies the opportunity to customize their website’s terms and conditions without having to pay the fees typically associated with having the documents drafted by a lawyer.

But one must bear in mind that SnapTerms is a service provided by people who are well versed in the laws of their country and perhaps not Malaysia.

To digress a little, e-commerce businesses should also protect their intellectual property such as their trademarks, copyright and patents. These rights are registerable and one can protect these rights in Malaysia by filing them with the Intellectual Property Corporation of Malaysia or MyIPO.

Other than that, it is pertinent to protect your brand from being taken in well-known social media websites like Facebook and Twitter. You can use Knowem to check for the use of your brand, product, personal name or username instantly on over 550 popular and emerging social media websites.

Closing

The introduction of laws to track and record Internet transactions is nothing new. Last year, Section 114A of the Evidence Act 1950 and Cyber Centre and Cyber Cafe (Federal Territory of Kuala Lumpur) Rules 2012 were introduced to track and record such transactions.

These laws will not be the last. I foresee that many more such laws will be introduced in the near future.

Download:
Consumer Protection (Electronic Trade Transactions) Regulations 2012

Docudeer – Your source of sample legal agreements and documents!
1. General Terms of Services
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4. General Privacy Policy

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Grave repercussions for internet users

Published on LoyarBurok on 24 April 2012.

Dissecting the presumption of fact relating to publication in the controversial new Bill.

The Evidence (Amendment) (No. 2) Bill 2012 was one of the bills rushed and passed by the Parliament recently. Minister in the Prime Minister’s Department, Datuk Seri Mohamed Nazri Aziz, when winding up the Evidence (Amendment) Bill 2012, said the use of pseudonyms or anonymity by any party to do cyber crimes had made it difficult for the action to be taken against them. Hence, the Evidence Act 1950 must be amended to address the issue of Internet anonymity.

The amendments introduced s. 114A into the Evidence Act 1950 to provide for the presumption of fact in publication in order to facilitate the identification and proving of the identity of an anonymous person involved in publication through the internet. In simple words, s. 114A introduces 3 circumstances where an Internet user is deemed to be a publisher of a content unless proven otherwise by him or her.

Although it is stated that the amendment is to cover anonymous persons on the internet, the effect of the amendment is quite wide. You see, we, especially social media network users, generally do not use our real names on the Internet. We use nicknames and pseudonyms. Our home addresses do not appear on our account. We sometimes use fictional characters or even digitalized images of ourselves as our profile picture. All these are done to protect our own privacy. So, if none of my personal details appear on my account, does this mean I am anonymous? If someone’s identity cannot be directly ascertained from his account, I would think that he would be anonymous.

The new s. 114A(1) states that “A person whose name, photograph or pseudonym appears on any publication depicting himself as the owner, host , administrator, editor or sub-editor, or who in any manner facilitates to publish or re-publish the publication is presumed to have published or re-published the contents of the publication unless the contrary is proved”. In simple words, if your name, photograph or pseudonym appears on any publication depicting yourself as the aforesaid persons, you are deemed to have published the content. So, for example, if someone creates a blog with your name, you are deemed to have published the articles there unless you prove otherwise. If you have a blog and someone posts a comment, you are deemed to have published it. If you have a Facebook page and an user posts something on your wall, you are deemed to have published it!

Subsection (2) provides a graver consequence. If a posting originates from your account with a network service provider, you are deemed to be the publisher unless the contrary is proved. In simple terms, if a posting originates from your TM Unifi account, you are deemed to be the publisher. In the following scenarios, you are deemed to be the publisher unless you prove the contrary:-

(1) You have a home network with a few house mates sharing one internet account. You are deemed to be the publisher even though one of your house mates posts something offensive online.
(2) You have wireless network at home but you did not secure your network. You are deemed to be the publisher even though someone “piggybacks” your network to post something offensive.
(3) You have a party at home and allows your friends to access your PC or wireless network.You are deemed to be the publisher even though it was a friend who posted something offensive.
(4) Someone use your phone or tablet to post something offensive. You are deemed to be the publisher.

As for subsection (3), you are presumed to have published a content if you have custory or control of any computer which the publication originates from. Here, you are deemed to be the publisher so long your computer was the device that had posted the content. So if someone “tweetjacks” you or naughtily updates your Facebook with something offensive, you are deemed to be the publisher unless you prove otherwise.

Admittedly, the amendments certainly saves a lot of the investigator’s time. It is very difficult to trace someone on the Internet. It will make prosecution for, among others, defamation, offences under the Communication and Multimedia Act 1998 and Computer Crimes Act 1997 and, election offences much easier. But it is not impossible to trace someone. There are many cases where perpetrators are caught and charged.

I do not see the logic to deem someone to be a publisher. If an investigator is unable to trace the anonymous internet user, then why should the innocent Internet user take the rap? The onus of proof should always be on the prosecuting side. In the English case of Applause Store Productions Limited & Anor v Grant Raphael [2008] EWHC 1781 (QB), the claimants were awarded £22,000 in damages against Raphael, an old school friend, who had created a false personal profile of the claimants on Facebook. The claimants convinced the Court that Raphael was the person who created the fake profile even though he claimed that he had a party at his house and someone in that party created the account.

In summary, the new amendments force an innocent party to show that he is not the publisher. Victims of stolen identity or hacking would have a lot more problems to fix. Since computers can be easily manipulated and identity theft is quite rampant, it is dangerous to put the onus on internet users. An internet user will need to give an alibi that it wasn’t him. He needs to prove that he has no access to the computer at that time of publication and he needs to produce call witnesses to support his alibi.

Clearly, it is against our very fundamental principal of “innocent until proven guilty”. With general election looming, I fear this amendment will be used oppressively. Fortunately, the amendment is not in force yet. I strongly hope that the government will relook into this amendment.

 

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What lies ahead for social media

Published in Putik Lada column, The Star on Friday February 3, 2012

It is going to be a tempestuous year with more developments in the social media scene, and a digital war may erupt between Internet users, companies and governments.

MALAYSIA’S social media sphere hit a milestone last year. Facebook users reached 12 million in Malaysia as at Decem­ber and Twitter users reached about 470,000 as at October.

Defamation actions and criminal charges against people for alleged misuse of social media have also become normal. There have been interesting developments in the social media and Internet legal scene.

Last year saw an increase in the use of social media by the legal profession to market their services. Some lawyers, law firms and courts have their own Twitter accounts.

Former Bar Council president Datuk Ambiga Sreenevasan (@Ambiga_S) has over 6,000 followers, international law firm Allen & Overy (@AllenOvery) has more than 6,600 followers and the US Supreme Court (@USSupremeCourt) has 23,000 followers and counting.

With such extensive use by legal practitioners, the Law Society of England and Wales issued a practice note for the use of social media by lawyers.

Back home, Cybersecurity Ma­­laysia introduced a new Internet guideline called Best Practice on Social Networking Sites (SNS).

The guideline is used as acceptable practices in usage of SNS with heightened ethics as well as in protecting the security of users and privacy needs. It is very useful for companies as guidance when drafting their social media policies.

Interestingly, the High Court of Malaya recognised that misappropriation of a domain name by a former employee is actionable under conversion of and trespass to property and breach of fiduciary duty in the 2008 case of Ogawa World Bhd & Anor v Ch’ng Wai Loong.

Normally, misappropriated Top Level domain names are recoverable through the WIPO Arbitration and Mediation Centre.

In Canada, the Su­­preme Court of Canada in Crookes v Newton (2011) delivered an important decision on the status of hyperlinks.

The Court held that creating hyperlinks to allegedly defamatory articles does not amount to a publication of defamatory information.

In India, the owners of a hotel sued Google over the auto-complete function on its search engine for defamation. When users typed the hotel’s name into Google, the word “receivership” is a suggested search term. However, the suit was later withdrawn.

“Who owns your followers?” was an issue to be determined when mobile phone website PhoneDog sued a former employee, writer Noah Kravitz, over the 17,000 Twitter followers that he had built up on a Twitter account called @PhoneDog_Noah.

Noah filed a motion to dismiss PhoneDog’s case but the US District Court ruled that PhoneDog could proceed with the lawsuit.

Many commentators are of the opinion that PhoneDog should have established a social media policy to determine the issue of ownership of the Twitter account when the account was created.

In a similar case, Eagle v Edcomm, Inc, et al., the Eastern District Court of Pennsylvania held that a former employee’s LinkedIn account be­­longed to the employer, even though the LinkedIn account contained the name, professional history and accomplishments of the employee.

Facebook had a busy year in 2011. Friendster repositioned itself as a social gaming site and discontinued its user social network accounts, leaving Facebook with one less competitor. However, Google introduced a new social networking site, Google Plus.

Facebook was subjected to a thorough and detailed audit by the Office of Irish Data Protection Commissio­ner, which gave a dozen recommendations for how Facebook can im­­prove privacy protection and data-handling practices. The audit report is available online in the interest of transparency.

Last year also saw the battle for Facebook page www.facebook.com/Merck. Merck KGaA, a German drug maker, suddenly lost its Facebook page to US rival Merck & Co.

Merck KGaA initiated an action against Facebook for details on how the page was lost. Facebook subsequently apologised to Merck KGaA for the mix-up.

We all know that it is very difficult to remove information published online. Some argue that confidential information posted online will lose its quality of confidence.

However, in AMP v Persons Unknown (2011), the UK High Court granted a superinjunction to restrain the further publication of stolen intimate pictures of a woman which were leaked online.

Arguably, this case implicitly determined the position of confidential information which has been leaked online.

On the criminal front, a US Federal Judge in USA v William Lawrence Cassidy dismissed a criminal case against Cassidy for “tweet stalking” a religious leader on Twitter.

Cassidy allegedly posted 8,000 tweets, almost all of them about the leader and her religious group, which caused the leader to claim that she had suffered “substantial emotional distress”.

The Judge held that although the tweets were uncomfortable, Cassidy’s right to tweet was protected under the US Constitution.

This year will see more developments in the social media legal scene. We may also see more Internet censorship and crackdowns on websites for sharing files – just like what happened to MegaUpload.

As a result, a digital war may erupt between Internet users and companies and governments. It is going to be a tempestuous year ahead.

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