NLRB Addresses Employees’ Use of Company Logos and Trademarks
For the last few years, the National Labor Relations Board (“NLRB”) has been issuing rulings that tend to broadly interpret employees’ rights when it comes to company social media policies. What about company logos and trademarks? Can a company’s intellectual property be used by an employee even when the use is arguably against the company’s interest?
Giant Food, LLC attempted to impose a new social media policy on its unionized employees. The policy included the following language:
Do not use any Company logo, trademark, or graphics, which are proprietary to the Company…unless you have received the Company’s prior written approval.
I’ve written about NLRB rulings on social media policies in the past. Here’s a summary of the topic, here’s a post about an employee who was fired for inappropriate Facebook posts, and here’s a post about the NLRB invalidating Costco’s social media policy.
From my post on the Facebook matter:
[Previously], I discussed the issue of employers firing their employees due to social media posts and how that may violate the National Labor Relations Act (the “NLRA”). For a quick review, the NLRA does not allow an employer to take actions or have a policy that has the may actually or potentially “chill” an employee’s right to engage in protected concerted activity – basically, concerted activity means discussing work conditions with other employees. The Act is violated if employees would reasonably interpret the language of a policy to prohibit Section 7 activity or if the policy has been applied to restrict the exercise of Section 7 rights (this is referring to Section 7 of the NLRA). So if an employer’s social media policy could be interpreted or applied in such a way that prohibits the exercise of Section 7 rights, it could be struck down by the National Labor Relations Board (the “NLRB”).
In the Giant Food case, the board ruled in an Advice Memorandum (click here for a PDF of the full document) “that portions of the Employer’s social media rules are unlawful because employees would reasonably construe them to restrict Section 7 activity.” The NLRB singled out the policy on trademarks and logos as being unlawful. Their analysis was as follows:
Employees would reasonably understand the rule to prohibit the use of the Employer’s logo or trademark in their online Section 7 communications, which could include electronic leaflets, cartoons, or even photos of picket signs containing the Employer’s logo. Although the Employer has a proprietary interest in its trademarks, including its logo if trademarked, employees’ use of its name, logo, or other trademark while engaging in Section 7 activity would not infringe on that interest. Courts have identified three interests that are protected by the trademark laws: (1) the trademark holder’s interest in protecting the good reputation associated with his mark from the possibility of being tarnished by inferior merchandise sold by another entity using the trademark; (2) the trademark holder’s interest in being able to enter a related commercial field at some future time and use its well-established trademark; and (3) the public’s interest in not being misled as to the source of products offered for sale using confusingly similar marks. These interests are not remotely implicated by employees’ non-commercial use of a name, logo, or other trademark to identify the Employer in the course of engaging in Section 7 activity related to their working conditions.
The last sentence is the key to the logic behind the NLRB’s ruling. If an employee was to use Giant Food’s logo in a picket sign, for example, she would not be using the logo as a trademark. Use as a trademark is generally understood to mean use to identify the source of a good or service, in order to entice a consumer to purchase that good or service. If you post Giant Food’s logo above the door your supermarket, you are using the logo as a trademark. If you use it on a picket sign – or, let’s say, in a Facebook post complaining about working conditions – you’re not trying to entice someone to consume Giant Food’s products or services. Rather, you’re simply using the logo to identify the employer in question.
For employers, the takeaway is to be careful in crafting your social media policy. Do not, under any circumstances, simply write up whatever you think should make sense and ask your employees to sign it – you’d just be asking for an adverse NLRB ruling.