branding

The social Law Firm (otherwise known as Law Firm 2.0)

Posted Thu, 14/01/2010 - 11:09 by Paul

I've been a little obsessed with what a law firm should or could look like in this era of a social Web and a two-way flow of communication between providers and their clients becoming a norm. The social Web introduced the possibility of engaging a little differently with clients and I have been debating (mostly with myself - its been an interesting private conversation) what I could change in our firm to take advantage of this "social media mindset" in our day to day business.

It is pretty clear to me that the traditional legal services model is changing. At least the focus is shifting from documents back to raw expertise because that is ultimately what practicing law is about (at least in my humble experience of about a decade or so). There are a number of services popping up that sell legal documents to the person on the street for far less than what an attorney would charge to prepare them. While there is certainly still a market for more intricate documents due to the special requirements for those documents that a standard document off the shelf could never anticipate but I suspect even those documents could somehow find themselves on a shelf at CNA one day.

Short of a readily available and really effective artificial intelligence, lawyers' knowledge can't be replicated and put on a shelf just yet. Clients still need to brief attorneys to harness what is often highly specialized and carefully cultivated legal knowledge and that is where our value as a profession lies. But this isn't what I wanted to write about in this post. What I have been thinking about lately has more to do with how we work with our clients.

I made a silly decision the other day which had to do with applying aspects of our terms of appointment to a couple of our clients. I met with one of those clients soon after I sent off the email informing them about our decision. Our meeting was a regularly scheduled status meeting to discuss a number of files we are working on for his company (this client takes advantage of our retainer fee structure so its worthwhile for him to meet with us regularly to discuss developments and new work) but at the end of our discussion about ongoing work, we chatted about my email. The discussion became an invaluable feedback session where we debated a number of issues. What I realized as we debated these issues is that the decision I took was more in line with what I see as a traditional approach to client management on some level. It was ironic because my focus is on social media and a very different approach to customers by their providers.

A had a couple "a-ha" moments in the course of that meeting and it got me thinking about better ways to communicate with our clients. Another irony is that many of the lessons I learned yesterday morning were communicated to me years ago in my previous firm, albeit as advice to play a more political game with colleagues and clients to ensure their collegiality and patronage (I have a strong aversion to political games, I am far more in favour of authentic interaction with people and that is one of social media's appeals). What I realized is hardly revolutionary. Many of the ideas about client interaction go back generations to the days of small villages and marketplaces. They are also ideas which have been implemented by better lawyers than me as long as there have been lawyers and their clients. I thought I'd share some of these ideas anyway.

Image credit: 25/365 - Organization. by BLW Photography (licensed under a Creative Commons Attribution 2.0 license)

There seems to be a gulf between lawyers and their clients for the most part. Lawyers are these mystical creatures who employ strange language and machinations in an effort to achieve seemingly simple results. I often see it in the way that we lawyers speak and draft our documents and I've written about the importance of speaking plainly about what we do and the documents we create before. I think one of the reasons we perpetuate this is as a sort of defence against the unwashed masses (our clients). We raise these linguistic barriers to prevent them from trying to do what we do themselves. Lawyers also work to maintain the perception that we are vital to our clients (we are actually but not because we use complicated language - its because the world is becoming increasingly complex and regulated and you need lawyers to interpret and navigate those legal frameworks).

What is often missing is a realization that clients are not a threat but can be our best allies. As I listened to what my client was telling I realized that I was listening to a passionate evangelist for our retainer fee structure (he has often told me he doesn't understand why more clients don't take advantage of our retainer fee structure because of its cost saving alone), if not our firm and the way we do business.

Photo credit: Day 236: Attorney and client by madmolecule (licensed under a Creative Commons Attribution 2.0 license)

He also reminded me about the importance of personal contact with clients. I do much of my work remotely and it is easy to forget the tremendous value of personal contact with a client as opposed to an email. This isn't exactly a revelation, good business people all over the world and going back in time realized this and formed deep and meaningful relationships with their clients in the process.

This all got me thinking about how I can communicate better with our clients and making better decisions about our business that help build evangelists rather than focus too heavily on the business itself. I was reminded that spending more time on making sure we have happy clients will benefit our business along the way and perhaps in ways we haven't thought possible. I'd like to see that gulf between us and our clients shrink and even disappear. I want my clients to give us feedback and even tell us off when we do something to harm our relationship with them. No news is bad news for a social law firm based on meaningful relationships. It also seems to mean that face to face contact trumps phone contact which trumps email or IM contact when it comes to building and maintaining relationships.

Social media is about building relationships with customers using tools online. Running a social law firm is perhaps more about using those online tools to enhance relationships cultivated face to face, so to speak. Whatever it is, it is a work in progress and probably always will be.

A quick post for our fans

Posted Fri, 25/12/2009 - 10:00 by Paul

You may not be aware that we have a Facebook Page for web.tech.law that updates as new posts are added to the main site. If you spend a fair amount of time on Facebook then why not become a fan?

If you have any ideas or suggestions for the Facebook Page, feel free to post them or send us a message either from Facebook or from the web.tech.law site itself. I'd certainly like to use the Page more productively and any feedback would be welcome.

You can also become a fan directly from the main site by clicking on the "Become a fan" button on the right in the sidebar.

If you happen to be more of a Google or Twitter person, you can also join our Google Friend Connect community using the Friend Connect panel in the sidebar to the right. I happen to have a preference for Friend Connect and I am constantly thinking about how to integrate it better into the site. One of the advantages of Friend Connect is that you can join that part of the web.tech.law community using your Google, Twitter, OpenID and AIM credentials. It is also attractive for people who are not Facebook fans and would prefer to use their existing credentials rather than create a new account.

Speaking of Twitter, we have a Twitter account we update from time to time. Our Twitter name/handle is @webtechlaw so feel free to follow us and check out our lists of interesting Twitter users and thinkers.

Of course you are also welcome to join the web.tech.law site as a member too. We are working on ways to add more value to our members on the site. Actually, it would probably be most helpful to integrate all our communities into the site better so any suggestions will be much appreciated.

My interview on Radio Today about Web and digital media law issues and trends

Posted Fri, 09/10/2009 - 12:19 by Paul

I was interviewed by the Advertising Standards Authority on Radio Today a couple weeks ago about the Web and digital media law. It was a pretty broad interview and I enjoyed being on the show. If you are interested in the Advertising Standards Authority, here is a brief profile:

The Advertising Standards Authority of South Africa (also known as the ASA) is an independent body set up and paid for by the marketing communication industry to ensure that its system of self-regulation works in the public interest. The ASA has a president independent from the industry and governed by a Board.

You can find out more about the ASA on its website. I would like to thank Corne Koch, the ASA's communications manager for inviting me to be on the show.

Ok, here is the audio from the interview. I have edited out two music tracks which were played during the show, mainly for copyright reasons:

Marketing on the social Web - a few legal considerations

Posted Thu, 30/07/2009 - 09:05 by Paul

I was asked to speak at the Marketing Legislation Conference at The Rosebank yesterday by Knowledge Resources. My topic was "Marketing on the social Web - legal considerations for digital marketers" and I thought I would approach it a little differently to the usual legal presentations you tend to see at conferences. Actually, all my presentations are a little different from the usual legal presentations. I spoke about the social Web and the challenges it presents to marketers. I am fairly heavily influenced in how I think about the social Web by the Cluetrain Manifesto and, more recently, Marketing in the Groundswell.

I was hoping to record my talk and make it available here for you to listen to but my recording setup still needs a little work. I have uploaded my presentation to Slideshare which you can take a look at here:

Marketing on the social Web - Marketing Legislation Conference

View more documents from Paul Jacobson.

You'll notice that one of the slides is blank. I embedded this video titled "Building on the Past" which is a great introduction to Creative Commons licensing and to the social media mindset itself:

By far one of the biggest challenges that lawyers certainly face is that the social media mindset is totally foreign to them and looks a lot like hippy piracy thinking. There is this notion that if something is online it can be used, remixed and re-used but I think that comes more out of this underlying "sharing is caring" ethos, and not so much out of a specific desire to infringe anyone's rights. This scares lawyers who tend to be conservative and averse to this sort of open sharing, especially when it comes to digital media.

This isn't to say that the law is meaningless online. Quite the contrary, the law provides an important and essential framework for the Web and digital media generally. What I do believe is that the traditional rules need to be adapted to social media because, ultimately, people who are social media users will prevail and will find a way to do what they want to do. The law should be used to facilitate the social Web while at the same time shaping its evolution with due respect to intellectual property rights, reputation and privacy concerns. This is all possible but it begins with an understanding of what motivates people on the social Web and you don't get that from law school.

If you are interested in the program for yesterday's event, here it is:

Standard Bank falls prey to brandsquatting on Twitter

Posted Mon, 27/07/2009 - 14:23 by Paul

I recently wrote about brandsquatting and what companies can when someone hijacks their brand on popular social media services. I just noticed a retweet today on Twitter pointing to a fake Standard Bank Twitter account which is pretty critical of the bank. This account uses a variation of Standard Bank's name and its sufficiently similar to be pretty easily confused with the real thing. Well, it would be if Standard Bank had actually registered a Twitter account in its name or was actually using it. The @standardbank account is presently an empty account with a couple followers.

Leaving aside the foolishness of not taking control of related accounts on social networks and either utilising them or closing them off for future use, this Twitter account presents a challenge to Standard Bank. At first glance this is a pretty simple case of trade mark infringement. A disgruntled customer has seized on a Twitter account with a similar name and is using it to criticise Standard Bank. The criticisms are not very well presented and I didn't notice the extra "l" in the account name and thought, for a moment, that this was a simple case of brandsquatting. As it stands there is also an element of typosquatting (a tactic used with domain names to create confusingly similar domains and capture traffic based on common misspellings).

Despite it being an apparent trade mark infringement on the basis, in part at least, that it constitutes passing off, it does remind me about the case of Laugh It Off Promotions CC v South African Breweries International (Finance) BV t/a Sabmark International and Another which reached the Constitutional Court a couple years ago. For those who don't remember the case, here is a useful introduction to Laugh It Off in the case (at paragraph 4):

The applicant is Laugh It Off Promotions CC, a close corporation that occupies itself with the appropriation of brands which inhere in well-known trade marks. This it does by altering the images and words on trade marks and printing them onto T-shirts. The applicant sells the T-shirts for profit in order to make social comment.

Laugh It Off sold t-shirts that used known SAB brands like "Black Labour" instead of "Black Label". It was a form of social commentary that infuriated SAB, which saw this as a form of trade mark infringement.

In the media summary of the case (a full copy of the media summary is embedded below but be sure to read the full case for a complete picture of the legal issues) contains the following extract:

This Court holds that Sabmark failed to prove Laugh It Off’s infringement of its trade marks. The “likelihood of taking advantage of, or being detrimental to, the distinctive character or repute of the marks”, has not been established. The rights of persons to express themselves cannot be lightly limited: the harm to the trade mark holder has to be material, and this is one of the internal limitations of section 34(1)(c). However, an interpretation of the section that conforms to the Constitution and the kind of society it envisions requires the one relying on the protection of the Act to show a real likelihood or probability of harm. Such harm must be of an economic sort. This is because the aim of the section is to protect the trade mark’s selling power rather than its dignity. It cannot therefore be inferred from a mere observation of the two marks that there is a likelihood of economic harm. This must be shown by adducing evidence to this end. To allow otherwise would be to permit a near-monopoly on the part of the trade mark holder. This is impermissible in a democracy such as ours.

While I am sure Standard Bank will not look too kindly on this account and may seek to have it shut down or transferred, I wonder if the "Standardcustomer" who created the account wouldn't be able to rely on the protections afforded by the right to freedom of expression in a similar way that Laugh It Off did. It may well be that Standardcustomer's right to freedom of expression may trump the bank's concerns about trade mark infringement. I also wonder whether Standard Bank could demonstrate "a real likelihood or probability of [economic] harm", which is the test the Court seems to have laid down in that matter.

In real terms, though, Standard Bank could circumvent the traditional trade mark infringment path (ie, the courts) and simply request that Twitter close the account on the basis of its existing rights. It would be a cheaper and arguably more effective option to address this specific account. What it may do is just inflame Standardcustomer and his/her sympathisers even further.

Perhaps what Standard Bank should rather do is engage with its critics better, mitigate the damage already done and proactively address customers' concerns in a more public forum like Twitter.

Here is the media release for the Laugh It Off case:

(Source: @oliviersandra via another contact on Facebook.)

Brandsquatting and your trade mark

Posted Sat, 20/06/2009 - 23:09 by Paul

I've just been listening to an interesting discussion in a recent episode of This Week in Law about the implications of brandsquatting on services like Twitter, FriendFeed and Facebook. You may be familiar with cybersquatting which occurs when a person registers a domain that person has no legitimate interest in and has registered largely for the purpose of re-selling it, typically to a trade mark owner, for a profit.

Cybersquatting is usually dealt with in terms of dispute resolution processes established in respect of those particular namespaces (ICANN's UDRP for .com, .org, .net and other top level domains and the .zaDNA's own dispute resolution process for the .za namespace). These dispute resolution processes are designed to be more informal than court proceedings and can be both more efficient and effective.

When it comes to brandsquatting the rules are a little different. You're no longer dealing with domain name registrations per se but rather the use of a folder on an existing domain, for example http://twitter.com/cocacola, which matches an existing brand or person's name.

Users who register accounts on services like Twitter, FriendFeed and Facebook and who claim usernames that are similar to or the same as existing brands or personalities may be doing so to leverage off the existing brand or personality to boost traffic, attention or even to harm that brand. These cases don't fall under the scope of the UDRP or zaDNA's ADR process and instead fall under the individual service's terms of service and possibly the relevant trade mark law. Fans often create accounts in the name of their favourite brands with the intention of creating fan-sites of a sort and the question then becomes whether to permit this use of a brand or shut down all unauthorised uses of the brand. The Coca-Cola page on Facebook was, if I remember correctly, created by two Coca-Cola fanatics and not by the Coca-Cola Company. The company agreed to let the group continue, presumably because of its overwhelmingly positive benefit for the brand.

On the other hand the Coca-Cola page on FriendFeed doesn't seem to be associated with the company itself or have much in the way of content about the brand. It is a relatively innocuous abuse of the brand but an abuse nonetheless.

The legal problems with these sorts of registrations include passing off which is when a person or service passes themselves off as an existing and often well established brand. This is a basis of unlawful competition as well as trade mark infringement in many legal systems, including in South Africa.

While remedies may include approaching a court to stop the passing off, this is an expensive and often time consuming process. Fortunately Twitter, Facebook and other services have provisions in their terms of use to deal with this (or they police this in the ordinary course of their business). Twitter, for example, specifically deals with this issue in its terms of service:

We reserve the right to reclaim usernames on behalf of businesses or individuals that hold legal claim or trademark on those usernames.

Facebook also has a few provisions dealing with brandsquatting. These provisions prohibit misleading account registrations or account registrations in other parties' names without consent. The Facebook Statement of Rights and Responsibilities also enable Facebook to terminate accounts for certain infringements of intellectual property.

FriendFeed's terms don't appear to address this issue explicitly but I have seen instances where FriendFeed staff act fairly decisively to address abuse of their system so brandsquatters shouldn't be too cavalier here either.

The point is brandsquatting is not tolerated either. The remedies may not be quite the same as those available for more conventional cybersquatting but remedies do exist. The only question is how readily the services concerned will take action against brandsquatters when these illicit activities are brought to their attention. Hopefully the action will be swift and decisive. If not, well, there are always the courts ...

Building an innovative law firm

Posted Mon, 09/07/2007 - 13:12 by Paul

I just took a look at this fantastic presentation by Matthew Homann. There are 73 slides and they are really good. The presentation takes a few minutes to get through and it is worth ten times that time:

Thanks Matthew!

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