“The question was put to respondents: Is the company guilty or innocent?  More than two-thirds presumed the company was guilty, even with no facts.” (emphasis added)

 Steptoe and Johnson partner Jim Moorhead, co-chair of the crisis management practice, discussing the results of a study done by Daimler about how the public would react to a corporate crisis situation if the only thing they knew was that a company was involved.   Quoted in “Coordination Critical in Crisis Management,” Counsel to Counsel, Nov. 2008.

We expect fairness from the rule of law.  We expect mature legal systems to provide its citizens, including corporate citizens, with a fair hearing and due process. 

When I hear about surveys like the one Jim Moorhead cites above a shiver goes down my spine, and it’s not because tomorrow is Halloween and I’m bound to be bombarded by costumed Trick or Treaters knocking on the door looking to grab a fist full of candy. 

Plaintiffs look to grab a fist full of candy too – out of your pocket.

When presumptions about corporate wrongdoing infest the jury pool it makes it harder to get a fair shake in court.  That’s why today’s quote is truly scary. 

I can turn off my porch light and send the Trick or Treaters packing.  But how do you keep potential plaintiffs off your front porch? 

It takes more than turning off the light.  On the contrary, it requires shining the light on the legal rules that govern your business and understanding the legal playing field you operate on.  It also requires the ability to execute policies and processes to enable you to recognize problems before they escalate into lawsuits.

Don’t let your business be shark bait. Take control of your legal risk before you get dragged into court.

“Read this and let me know if they can really do it,” my assistant said as she handed me the front page of the local paper.  The headline: “MLB says kids teams can’t adopt nicknames.”

We’re in the middle of the World Series between the Philadelphia Phillies and the Tampa Bay Rays and the headline makes it sound like the Grinch Stole Christmas.  Kids can’t emulate their heros?  It doesn’t sound fair.

Actually, the headline is a bit misleading.  It says teams can’t adopt nicknames.  When you read the article you realize its really about trademarked names, not nicknames per se.

Part of every professional sports team’s franchise, or marketing platform, is it’s team name and logo.  Those assets are closely guarded and usually trademarked for added legal protection.

Using someone else’s name without their permission is really a form of identity theft.  It causes confusion and misleads others and that’s where the trademark infringement comes in.

Oh, ‘common you might say.  When Al’s Garage sponsors the local youth baseball team and their team jerseys say “Al’s Yankees” everyone knows it’s not the real NY Yankees.  And besides, how can they own the word “Yankees”? 

True.  They know it’s not the world famous NY Yankees — but seeing the word “Yankees” in the context of a baseball uniform makes people think of the NY Yankees and there’s the rub.  It’s very different than, for example, seeing a Yankees Cheese Shop sign.  It’s a different product and, in legal terms, a different class of goods.  When it comes to baseball, the NY Yankees can own that Yankee space.

Most ethical people would not dream of driving someone else’s car or moving into someone else’s home without permission.  Yet when property is not three dimensional, when you can’t pick it up and hold it, when it’s intellectual property like copyright, trademark, and patents; more people are inclined to rationalize use without permission.

Rather than banning use of Major League Baseball team names on pint size jerseys, the MLB might consider offering a limited license for a very nominal license fee — an amount that could be raised in a bake sale.  In the process they would be teaching the kids that stealing a name is not the same as stealing a base. 

They would also hit a home run for legal literacy by reminding players, coaches, and sponsors that the law, like baseball, has rules that need to be followed if you want to stay in the game.