Conference 7.286::digital

	re .0:

>>>	"..Digital could possibly be held legally liable for defamatory comments
>>>	against a business made by Digital employees here."

	In general, I see this sort of statement over and over again.
	The operative word is POSSIBLY.

	What worries me is that, given a free rein, lawayers almost always
	seem to give the law the widest berth possible. We aren't allowed
	to talk about certain things among ourselves. We aren't allowed
	to tell customers about our plans. Good grief, we are even told
	HOW we can use our own trademarks.

	(For instance, we mustn't refer to "a VAX". It has to be "A VAX
	computer" or "a VAX workstation". Who ever heard anyone go to a
	bar and ask for "A Coca-Cola soft drink"? Who ever asked a dealer
	for a "Ford automobile"?)

	POSSIBLY,  we are allowing ourselves to be hopelessly hamstrung
	by a battery of doubts and fears. With the result that we are
	all that little bit less confident, positive, and ready to use
	our initiative.

	"Oh, I couldn't do that. It could possibly get us in LEGAL
	 trouble..."

	/Tom

    I don't know about internal use, but if we use "VAX" in external
    documentation, we will suffer the same fate as Parker Brothers.
    
    They lost the monopoly on "MONOPOLY" because they didn't say
    "Monopoly brand trading game".
    
    I think it is dumb and extreme lawyerthink, but the courts go along.
    
    	-rjc
    

>"... but we must also keep in mind
>that notes conferences on Digital's corporate network are not "free speech",
>and that Digital could possibly be held legally liable for defamatory comments
>against a business made by Digital employees here."
>
>Has there ever been a court ruling on this?

    Not that I have been aware of. On the other hand Digital has been
    threatened with legal action more than once over comments a Digital
    employee has made in a Notes conference. It is my understanding that
    Corporate Legal would be happy to see some legal precedent but not
    with Digital being the test case. Seems like a good move to me to avoid
    such things.

>If not, DEC could be legally liable anytime an employee voices an opinion, be 
>it in a (non-)work related conference or not, verbally or in an internal memo,
>which affects a DEC business decision. For example, if one encourages DEC not 
>to do business with a particular supplier because of some "turkey" one knows 
>there or argues that the supplier's product is shoddy/inferior, perhaps not 
>"true", can DEC be held liable for that?

    I don't know how long you've been a lawyer but I have heard lawyers of
    Digital's payroll state that they thought a case could be made that
    Digital has some liability in such cases. Please feel free to cite
    case law in support of your opinion that the corporations lawyers are
    wrong. Thank you.

    		Alfred

    In as few words as possible, I'll share my experiences in which
    internal communications (memos, notes, etc.) ended up as legal
    ammunition.  I worked for a big company with lots of cash that was
    always getting sued, with or without justification - sometimes just
    because it had money to sue for.
    
    The suing lawyers subpoenaed EVERYTHING INTERNAL (including notes in
    our desks) - they were the ones to determine whether any or all of the
    subpoenaed material was pertinent to the case - not any one internal. 
    Unfortunately, the law sees every employee as a representative of the
    company - and everything he/she does, related to any aspect of
    business, on (and sometimes off) the job as an action of the company 
    (just like using "an informed source says" in the news in interpreted 
    as a truth for the whole company in the news media).
    
    Primarily, the cases I knew about were of the Taft-Hartman level.  In
    our layman terms they involved allegations of:
    
    	- conspiracy to monopoly (conspiracy is not just with another 
          company, by the way)
    	- conspiracy to defraud
    	- patent infringement
    	- illegal discrimination (race, sex, religion, etc.)
    	- OSHA infractions
    
    There have been other cases in which I wasn't involved such as where
    stockholders sued management for incompetence (a New England utility
    for one).  These cases used internal communications as part of the
    argument.
    
    From what I can see, internal, unofficial communications are not the
    primary basis for the suer's case unless it is overwhelming and/or
    directly involves top employees/management.  However, such stuff from
    any level makes it difficult, and sometimes impossible, for the defense
    to argue itself out of an unfavorable position.
    
    There have been times when I thought this practice of the justice
    system was right - and other times I thought it was stupid.  So I can't
    express a general opinion.  All I know is that that's the way it is
    when push comes to shove in the courtroom!

    I worked in our Law Dept. for about 18 months.  Based on that
    experience, plus some other real-life experiences I've seen, I've come
    up with 4 principles:
    
    1.  people can and will sue for just about anything
    2.  lawsuits are an incredible nuisance, drain everybodies' resources
        (except the lawyers', of course), and nobody wins (except, of
        course, the lawyers)
    3.  from a business standpoint, lawsuits frequently are started and
        maintained to drain the other side's wallet (i.e. wear them down),
        not with any expectation of a clear victory in court or because the
        suit is fair or reasonable
    4.  anybody with deep pockets (i.e. a lot of cash lying around) is fair
        game
    
    Also, as an aside.  Trademark law in this country (and most others)
    requires that you police your own mark.  Use it or lose it and take
    action if anyone uses it incorrectly or tries to sell off of it.  
    Example:  Company X decides to market a PC.  They name it
    the PC-AT.  IBM files suit.  Company X subpoenaes every memo anybody
    ever wrote about the PC/AT pc at IBM.  They document that IBM employees
    have referred to it as the PC/at, the pc/AT, the PC: AT etc. and 
    suggest that IBM doesn't use the trademark PC/AT, take care of it, etc.  
    If IBM can counter with evidence (memos) reminding employees that it 
    should be referred to as the PC/AT personal computer or the PC/AT system, 
    they are covered.  In the meantime, while time is dragging on with 
    gathering evidence, court dates, etc., Company X is making quick bucks 
    by confusing the marketplace, who thinks they are getting an IBM personal 
    computer.  

                                           TM
	Given the previous, and the DIGITAL code of "Do the right thing",
	it seems to me that the right thing is to do my utmost to ensure
	that the corporation is not embroiled in a (possibly groundless)
	lawsuit as the result of something I wrote in an internal
	communications. If that means that I have to say "I cannot
	recommend XYZ Corp" in a employee interest conference, instead of
	"XYZ Corp ripped me off, they are real scum, here are the gory
	details..", then so be it...

	The use of "XYZ Corp" in the above is purely for illustrative purposes,
	any connection with an actual "XYZ Corp", past or future, is purely
	a coincidence.

				Tom_K

re Note 1221.5 by CARTUN::MISTOVICH:

>     Example:  Company X decides to market a PC.  They name it
>     the PC-AT.  IBM files suit.  Company X subpoenaes every memo anybody
>     ever wrote about the PC/AT pc at IBM.  They document that IBM employees
>     have referred to it as the PC/at, the pc/AT, the PC: AT etc. and 
>     suggest that IBM doesn't use the trademark PC/AT, take care of it, etc.  

        As a nuisance, this tactic would be just as effective even if
        no example contrary to the public trademark was uncovered.

        Besides, why should internal use matter -- it isn't "in
        trade" internally, is it?  Isn't the real danger that sloppy
        internal use probably would lead to sloppy external practice
        (E.g., I often see "ALL-IN-ONE" incorrectly used on
        presentations to customers)?

        Bob

    re: .7  Why should internal use matter?
    
    Because internal, improper use that is not corrected shows that the
    owner is not serious about protecting their trademark.  In this
    country, we must claim trademarks prior to owning them.  There is a
    waiting period (2 years, if I remember correctly) before ownership is
    granted.  During that time, and forever thereafter, the claimant(?) is
    responsible for correct use.  Part of establishing ownership rights 
    can be proving that you used the trademark 1st.  If another company 
    challenges your trademark and claims that they used it first, internal 
    documentation can be used as evidence either for either side, depending
    on if it shows correct use.

re Note 1221.9 by CARTUN::MISTOVICH:

>     Because internal, improper use that is not corrected shows that the
>     owner is not serious about protecting their trademark.  

        I know that you claim this, but I do not understand the logic
        behind such a claim.

        Take two examples:

        Company A is extremely sloppy with its internal use of its
        trademarks, but nevertheless is extremely careful and proper
        in all external communications with respect to its
        trademarks.

        Company B is extremely careful and proper in all use of its
        trademarks, both internal and external.

        The evidence above shows that both companies are diligent in
        the use of their trademarks in trade.  If anything, company A
        is possibly more diligent, since the scenario shows a
        conscious attempt at care, whereas Company B's care could
        simply be "accidental" (i.e., nobody ever considered doing it
        any other way).

        I can understand how, in the case of a challenge, internal
        documentation could be used to show who used a trademark
        first, but that is a separate issue, isn't it?

        (I can imagine, in some truly bizarre case, that due to
        widespread careless trademark use internally, that no internal
        evidence of trademark use would be found to support a
        company's claims.)

        Bob

        P.S.  Have we ever lost the use of a trademark due to
        carelessness?  If that did happen, was the business impact
        large or small?  

    re: -1
    
    I didn't mean that as a claim, but as an explanation.  Correct external
    use may be considered more important the correct internal use, but in a
    court case, ALL use and policing ALL use is what is considered.
    
    I don't know whether we've lost a trademark do to improper use, or
    rather, failure to correct improper use, but I seem to remember seeing
    reprimands regarding proper use (although they may not have been
    directed at us...this was several years back).
    
    As to justifying...I have absolutely no interest in attempting to
    justify why trademark or other laws work the way they do.  All I know
    is approximately how they work based on what I've observed.  

    The 11 replies here have not mentioned the word "discovery".

    Basically, parties which sue Digital have the right to ask the court to
    compel the disclosure of "all documents" that might be relevant to the
    case.

    "All documents" includes electronic ones, such as mail, VTX, and Notes.

    Therefore, whatever one writes in a conference should be written with
    the understanding that a party external to Digital, who might have an
    interest in embarrassing Digital, could disclose it.
    
    An internal memo of Northwest Airlines was recently published in the
    Wall Street Journal.  The author was arguing internally that
    price-based competition was ineffective in changing market share.
    The government is investigating price-fixing among airlines and this
    came up.  Do you think that employee now regrets his candor?
    
    Areas that I think are sensitive at Digital are, but not limited to:
    
    (1) safety, in our plants or product safety
    (2) drug use among employees
    (3) fairness to transition employees
    (4) affirmative action
    (5) who knew what when regarding the financial condition of the company
    
    and with a little effort I could extend the list to ten items.  So my
    personal rule is that I don't write anything so inflammatory that it
    will appear in Computerworld or the Wall Street Journal.
    
    I'm a consultant in the Digital Customer Center for Financial Services,
    not a laywer, nor a a DEC PR person.
                                        

Re: .6
>                                          TM
>	Given the previous, and the DIGITAL code of "Do the right thing",


The word "DIGITAL" is NOT a trademark.  The Digital logo is.

				Steve

re Note 1221.12 by STKMKT::SWEENEY:

>     An internal memo of Northwest Airlines was recently published in the
>     Wall Street Journal.  The author was arguing internally that
>     price-based competition was ineffective in changing market share.
>     The government is investigating price-fixing among airlines and this
>     came up.  Do you think that employee now regrets his candor?
  
        It's hard to say.  That employee just might have saved
        Northwest big bucks by avoiding a costly but ineffective
        campaign.  Could he have accomplished that if he NEVER wrote
        anything to that effect?  In a large enterprise, that is
        unlikely.

        (And, as characterized by you, his memo wasn't advocating
        price fixing.)
          
        Some "risks" of this type might definitely be worth taking.

        Bob

Re .13:

>The word "DIGITAL" is NOT a trademark.  The Digital logo is.

That is a case-sensitive assertion.  From the Law Department Infobase:

"
  DIGITAL TRADEMARK LIST                WorldWide Law - Trademark Information

          "DIGITAL INTERNAL USE ONLY" - Rev. 8/10/90     Page 13 of 14
 PRODUCT OR SERVICE NAME             TYPE OF PRODUCT OR SERVICE
...
     Digital                             Goods, services
     DIGITAL logo                        House mark - goods, services
     DIGITAL logo (in Hebrew)            Hardware, Software (Israel)
...
                 For hardcopy, type  0  (zero) then press  RETURN
 
  <  revious       To return to previous menu, press  PF3         More  
"
				/AHM

	re .9
    
   >								 In this
   > country, we must claim trademarks prior to owning them. 
    
    
    	Which country is that, please?  This notesfile is read world-
    	wide.  DEC is an international company.
    
    
    	(To be read with a sarcastic intonation).

	My understanding is that dictionary works, unadorned,
	cannot be copyrighted.  "Digital" is such a word.
	If another company wanted to call itself Digital, we
	would have no recourse.  Of course, we could try, but
	it would be ultimately futile.  However, "DEC" could
	be copyrighted, but I don't know if we ever have.
	Also, things like "digiTal", or "DigitaL", etc. can
	be copyrighted.  Our whole name, Digital Equipment
	Corporation, is no doubt rightly copyrighted.  Of
	course, our trademark that uses "digital" in boxes,
	can be and is copyrighted.

    re: .16
    
    I forgot that people wouldn't automatically know that I'm based in the
    U.S.  Trademark law varies from country to country, but most countries
    require some sort of waiting period prior to granting tm rights.
    
    Sa.

Actually, it's pretty obvious from the base note that this
is a US-based discussion.   I don't think there's anywhere
else in the world quite as crazily litigous as the US of A.
At least, I hope there isn't.

RE .13, .15, .17, .18, others....


There is a notes conference for the discussion of trademark issues, etc.

-steve