TomiLaw retires. Business Beanstalk grows

After 3 years, we have decided to retire this blog.  TomiLaw - which has focused on Technology, Online, Media and IP issues - will still be online and you will be able to access the archive.  But we've launched a new blog.

Business Beanstalk is for leaders in fast moving companies and focuses on business growth, managing risk and new technology.

We hope to see you on our new blog.  And don't worry - if you're a subscriber to TomiLaw, we'll automatically subscribe you to Business Beanstalk.  Just click on the email when you receive it!

Salesforce customer sues over support

Houston-based Salesforce.com customer manufacturer Bray International is suing Salesforce.com after an upgrade to a Premier Support licence allegedly “proved unworkable”.


The claim alleges that Salesforce has failed to respond to support queries within the agreed time, has not adequately provided worldwide support due to use of dialects different to those of the customer and that it failed to provide 6-monthly health checks. Bray alleges that each of these is a breach of contract, fraud, negligent misrepresentation and as a result Bray should be entitled to a refund and compensation.  Without Salesforce's defence, we have only heard one side of the story and, until a judge rules, it's not appropriate to comment in detail.

In general, the key in any claim is for a customer to show that, as a result of the alleged breaches, it has suffered loss and therefore the supplier should compensate it. Breach of contract / SLA is a common ground for complaint. Also, BSkyB recently brought a successful claim in the UK against EDS for a number of grounds including fraudulent misrepresentation.

Customers and suppliers may have different views and each will argue as to what was promised, what this means in practice and whether or not those promises were fulfilled. Obviously, response and resolution times are different and it should be relatively straightforward to identify what was promised and whether it was fulfilled. A claim based on a different dialect is not as straightforward and will depend upon whether the cover was appropriate in the circumstances and whether the problem was adequately resolved.

For the full story, visit MyCustomer.com.

New Report on Data Security and the Cloud launched by DMH Stallard

The Report – entitled ‘Secure Your Data in the Cloud’ – aims to give those organisations with real concerns as they migrate from on-premise provisioning to Cloud based solutions, answers to a host of questions relating to the issue of security. It follows ‘Secure Your Data – Protect Your Business’, published earlier in 2012, which contained best practice recommendations arising from interviews with a number of organisations on how they treat data.

Frank Jennings, Head of Commercial, DMH Stallard LLP and author of the Report, stated: “Industry surveys consistently show that data security is the number one concern when it comes to Cloud adoption,”

The Report aims to answer the key questions they are asking about Cloud solutions and we have asked a host of industry experts for their views as well as our own. The answers themselves reveal that data is not inherently more insecure in the Cloud than on-premise. According to our experts it is all down to what safeguards there are and the responsibility for this resides with the data owner themselves,” he added.

According to recent research by the Cloud Industry Forum data security is cited by 82 per cent of companies as a key concern for them as they take the decision to migrate to the Cloud. This was followed rapidly by data privacy at 69 per cent.

The Report also takes five key lessons learnt from the research:

1. Keeping data secure is not so much about whether it is on-premise or in the Cloud as it is about putting in place proper safeguards

2. You should classify your data according to importance and adopt security measures accordingly

3. Undertake diligence on your providers. Make sure they have a good reputation, have achieved recognised accreditations and have addressed security to your satisfaction

4. Don’t just look after the technology. Remember security is about people too

5. Take practical steps to protect your data and then cover this off in the contracts with customers, staff and suppliers.

For further information about the report, please click here.

Twitter rant costs employee his job

A man in Pennsylvania was recently dismissed from his role at an American company for posting several derogatory tweets about his colleagues on Twitter. The individual didn’t hold back and, according to the court documents posted by The Employer Handbook his insults included that his workplace was toxic and that his colleagues were morons, dysfunctional, psychotic and schizophrenic!

Similar cases are not uncommon in the UK and this serves as a useful reminder to employers of the pitfalls and problems caused by their employees’ social media usage. For example, the Metropolitan police officer in 2011 who was dismissed after posting comments on Facebook that his colleague was a liar and a grass.

But employers should refrain from having a knee-jerk reaction to such incidents. You still need to ensure that your disciplinary process is followed and, if you considering dismissing your employee, you think carefully about your legal reason for doing so. If you’re relying on a breach of your bullying and harassment policy or your code of conduct, you should treat online acts in the same way as if it had occurred in the workplace. Having a general code of conduct in place which sets out fundamental standards of behaviour is helpful as its principles can apply to conduct both inside and outside the workplace.

It is also essential that employers have in place an effective social media policy which clearly sets out the sort of online behaviours that will not be tolerated. In an age where almost everyone uses social media in one or more forms, employers need to be more vigilant than ever.
Julie Jones and Amanda Lyons will be discussing this and other issues at the DMH Stallard employment law group master classes on 13, 15 and 20 November.

Prohibition on probiotics, or is it all Greek yoghurt to the consumer?

The Grocer magazine reported two yoghurt labelling tales last week.

The first concerns two companies fighting over the meaning of "Greek yoghurt" with Fage claiming purchasers will be misled into believing rival manufacturer Chobani’s product labelled as such is actually made in Greece. Chobani is preparing to argue in the High Court that the phrase is in common use and understood to mean a style of yoghurt and not its place of manufacture but has agreed to change its labelling to “Greek strained” in the interim.

A separate story reveals that yoghurt manufacturers are protesting against a European Commission Regulation limiting health claims on food products. The 222 descriptions allowed under the Regulation, due to come into force on 14th December, exclude the term ”probiotic”. The Yoghurt and Live Fermented Milks Association is lobbying to have ‘probiotic’ recognised as a so-called general descriptor under Article 1(4) of the EU Nutrition and Health Claims Regulation instead.

Unfortunately for the manufacturers adding “probiotic” to the general descriptors list would not be effected soon enough counteract the requirement to remove the term in December.
It seems that will be a lot of repackaging in the sector as manufacturers come up with new descriptions to make their product stand out from this increasingly crowded market. Indeed, there are already reports that they are finding new ways to target consumers concerned with health and wellbeing.

TomiLawyer and IP disputes expert, Nick Kounoupias commented:

"One of the key features of a brand name or a trade mark is to act as a badge of origin and to differentiate the products of one supplier from those of another. In this case we have the unusual situation of a US based entity, presumably using US ingredients, trying to pass off to UK consumers its products as Greek! Why would anyone wanting to buy authentic Greek yoghurt prefer to purchase this product over one that uses exclusively Greek ingredients and milk from animals that have grazed in Greece and not in the US? This is all about not confusing or misleading the consumer and describing Chobani yoghurt as "Greek yoghurt" would certainly do that."

Sally Creissen
Library and Information Services Manager