Supreme Court Paves the Way for Changes to Expert Discovery

Picture titled "Transparent Chemistry Glass Tubes Filled with Substances" by Horia Varlan

In "Supreme Court Paves the Way for Changes to Expert Discovery," guest authors, Neil J. Zoltowski & Laura C. Dorner explore the recent changes to Rule 26 of the Federal Rules of Civil Procedure. Going into effect on December 1, 2010, Rule 26 now provides draft protection for testifying experts, as well as certain protections of attorney/expert communications. Throughout the article, the authors give insight into the numerous benefits that the amendments offer including decreased costs, increased efficiency and a more candid atmosphere than under the previous version of the rule. For those heavily involved in litigation, this article is a must read.

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Social Networking Requires Businesses to Reconsider How to Protect Client Lists

Image By: Hank Grebe 

Customer lists have traditionally been protected by trade secret law. According to American law, a trade secret has three main elements: (i) it must not be generally known to the public, (ii) it must bestow some economic benefit to the owner by virtue of its anonymity and (iii) the owner must use reasonable efforts to keep it secret. Many states include “customer list” in their definition of trade secret. However, even if a state does not include “customer list” in its definition of trade secret, courts regularly protect these assets as trade secrets. Keep in mind that even if trade secrets are protected by statute, they still must fit the three criteria in the definition of trade secret in order to continue receiving protection.

Prior to the rise of sites like Linkedin, third parties essentially had no way of viewing customer lists. Nowadays, with the advent of social networking sites, employees can build social networks that are viewable by the public. These social networks often include professional acquaintances, many of whom may be company clients. As such, these social networks often reveal a large chunk of a company’s customer list, therefore, rendering customer lists public and no longer protectable by trade secret law.

Given the current reality that customer lists are less likely to receive trade secret protection, firms must take measures to ensure that these assets remain confidential. For one thing, firms can require employees to sign non-disclosure agreements that include client information as confidential. Additionally, firms should add a social media section to non-compete agreements that addresses the confidential nature of social networks. A similar clause should be added to non-solicitation agreements. However, simply defining social media contacts as confidential is not enough; the company must take steps to ensure that the information is treated as confidential. For example, employers can require employees to select privacy settings that would prevent the public from viewing their social networking contacts. Whatever a company chooses to do in order to adapt, it is apparent that the rapidly changing digital world is forcing companies to reconsider the way that they do business.

A Fashion Fiasco

Photo By: ChristopherMacsurak

Hollywood actresses spend thousands of dollars on couture dresses for the Academy Awards. The designers who craft these exquisite gowns spend hours of time and bundles of money to adorn such fashion-forward actresses. Yet in minutes of stepping on the red carpet, individuals are sketching these designs with plans to recreate a cheaper version of the couture for the mass-market. With the rapid use of technology, designs from runway shows in Paris and Milan are being recreated overnight and are shown in stores, such as Forever 21, in the United States within weeks. The quick snap of a camera and the instant upload to a computer can turn a couture design into a cheap knock-off.

Currently, trade dress law and policy does not cover the design of a dress but rather covers only the look and feel of the article. In the basis for a Supreme Court case, Samara designed and manufactured children’s clothing. Wal-Mart sold knock-offs or copies of these designs and generated approximately $1.5 million in gross profits. In Wal-Mart v. Samara, 529 U.S. 205 (2000), the Supreme Court held that clothing is product design and therefore secondary meaning is needed.

Similarly, copyright law doesn’t cover the overall design of a dress but it does cover a pattern. Specifically, copyright law covers the lace pattern of a wedding dress but does not extend to the wedding dress as a whole. Over the past four years, Representatives have introduced design piracy legislation into Congress only to have it die in committee hearings before reaching a vote.

Along with maintaining creativity, designers must endure the push and pull nature between copyright and trade dress law while searching for available protections for their designs. With the scarce options of intellectual property remedies for designers, design pirates are monetarily capitalizing on a designer’s creation and are usurping their creative marrow.

The question left for designers is whether the fate of their protective remedies is left with Congress or with the courts. Moreover, if either of those routes fail, then will designers be left with parsing the intellectual property principles of copyright and trade dress to protect specific aspects of their design?

Regulation of Social Networks: Unfortunately Unnecessary

Photo courtesy of Dave Makes, on Flickr

The advent of social networking has drastically changed the way people interact on a global level. Corresponding with this change is the use of personal information for the commercial gain of the very websites used for these personal connections. In “Regulation of Social Networks: Unfortunately Unnecessary”, author Jan Blackburn explores the legal issues and potential solutions surrounding the covert practices of Facebook. In a thought-provoking prose, Mr. Blackburn is bound to conjure up feelings of outrage from those readers who used Facebook.

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