Innovation and Exasperation

@bpglobalpr - An Enlightened Approach to Managing Trademarks in Social Media

There was a confluence of stories today about managing IP in social media, conveniently providing a "teaching moment" around the parody Twitter account @bpglobalpr. 

Venkat Balasubramani led off with a guest post on Eric Goldman's blog, reporting on a recent International Trademark Association bulletin which urged brand owners to take a measured approach to infringement of their trademarks on sites such as Facebook and Twitter, rather than immediately escalating to a confrontational cease and desist demand: 

1. Don't panic.
2. Be proactive (get familiar with the sites - "maintain some presence").
3. Don't go guns blazing against the social networking website - it's tough to hold the social networking site liable (Tony La Russa's lawsuit against Twitter is an example of this approach).
4. Use the tools and informal processes provided by the site.
5. Use traditional enforcement strategies.

Later in the morning, Ad Age profiled BP's hands-off reaction to the recent @bpglobalpr Twitter phenomenon.  To its credit, and contrary to what one would expect from a multinational oil company, BP is not seeking to shut the account down, acknowledging that it provides a useful forum for people to vent their frustration over the Gulf oil spill.  See steps 1 - 3, above.  However, BP is not completely abandoning control over its IP.  A comment by the BP spokesperson quoted in the story hints that BP asked that the profile picture associated with the account be changed so that it did not duplicate BP's logo.  The revised profile picture forgoes BP's distinctive green and yellow color scheme and shows the logo dripping black oil, a subtle but effective signal that the account is not an official BP account.  This brings the account closer to compliance with Twitter's guidelines for parody, commentary and fan accounts.  See steps 4 and 5, above.

So, by taking a more enlightened approach to managing its trademark, BP is actually salvaging some PR goodwill from an operational disaster.  A good lesson for brand owners everywhere.

Quick Review of the Draft Boucher-Stearns Privacy Bill

Representatives Rick Boucher (D-Va.) and Cliff Stearns (R-Fla.) today released a discussion draft of a bill which would set nationwide minimum privacy standards for websites and ad networks.  Here are the highlights, based on my quick review:

• Collection and use:  No consent is required to collect and use operational or transactional data (routine web logs or session cookies) or to use aggregate data or data that has been rendered anonymous.  Collection and use of most types of personally identifiable information ("PII") will be on an "opt-out" basis.  Only "sensitive" PII information, such as an individual’s medical records, financial accounts, Social Security number, sexual orientation, government-issued identifiers and precise geographic location information, will be subject to an affirmative "opt-in" requirement.
• Sharing non-PII data with third parties:  As noted above, no consent is required to use aggregate or anonymous data, which I interpret to mean that no consent would be required to share such data.
• Sharing PII with third parties:  In general, any sharing of PII with third parties will require affirmative consent.  Exceptions are created for sharing PII with the website operator’s vendors and service providers and for sharing with ad networks (see below).
• Sharing PII with ad networks:  PII may be shared on an “opt-out” basis with a third-party ad network if there is a clear, easy-to-find link to a webpage for the ad network that allows a person to edit his or her profile, and if he chooses, to opt out of having a profile, provided that the ad network does not share the individual’s information with anyone else.  This is very similar to the NAI’s existing opt-out process.
• Privacy Policies:  Website operators must maintain a privacy policy which explains their data collection and use practices, provides instructions on how to limit or prohibit the operator’s collection and use of data and includes contact information for the FTC’s enforcement division.  The privacy policy must be accessible from the home page of the website.  Material changes to the privacy policy require the user’s affirmative consent before the changes can apply to that user.

Summary:  This draft bill strikes me as more of a codification of existing US best practices than an attempt to impose an EU-style privacy regime.  Mainstream US websites should be comfortable with this proposed legislation in its current form, but should closely follow its progress through Congress.