Ask the Legal Expert about ... marketing/sales ideas

John Durso, Esq.  Nixon Peabody LLP
John Durso, Esq. Nixon Peabody LLP

A nearby competitor is ripping off our marketing slogans and copying some of our other sales ideas. What can we do? 

A facility does not have authority to issue a “cease and desist order.” However, a court may issue such an order against a facility's competitor if the competitor is infringing on protected information.

The facility can protect its “slogans” through trademark or copyright laws. If properly registered, then a facility can protect misuse or theft of its slogans.

Under appropriate circumstances, if the competitor refuses your written demands to stop the infringement, a court could issue a “cease and desist.” 

“Sales ideas” are harder to protect as a competitor may copy your “sales ideas” if they are not protected. For example, if you are offering free respite weekends to prospects to let them participate in your community as a device to attract them to become permanent residents, a competitor can match this unprotected, common practice.  

What should we do to insulate ourselves from liability when it comes to employees doing stupid things like posting photos of naked residents to social media sites?

First, all providers should establish a policy on employee use of social media postings that require that all social posts must be supervisor approved.

However, even if you had such a policy, it might not prevent the posting since all employees should already understand that such postings violate the resident's rights, including the right of privacy.

Finally, the only way to avoid such liability is to not hire such stupid employees to discipline. Even a clear policy will not defeat the stupidity implied by your question.