Avoiding legal exposure

 

The risk of legal liability for product documentation varies greatly across industries and locales. That said, products that can harm people are of greater concern than others. Farm equipment with sharp blades carries higher risks than a smartphone. A software application that controls a medical radiation–dispensing device carries higher risks than a computer game.

But as you explore how to handle legal requirements, what really matters is the opinion of your organization’s legal counsel. If the legal team wants two pages of at the beginning of each document warning about the possibility of decapitation by manual can opener, they will probably get their way.

Unfortunately, most of the legal document priorities are directly at odds with creating useful content. An organization can focus on eliminating any legal risks in the documentation, and for a potentially dangerous product, this might even be appropriate. But if instructions are buried under extensive warnings, readers may instead turn to disclaimer-free (and maybe unreliable) third-party content. The risk is that maximizing legal protection may also minimize content consumption.

Note:

None of the information in this section is a substitute for advice from an actual legal professional with expertise in your specific industry and jurisdictions. (See? We all need disclaimers.)

 

Intellectual property, patents, and limiting product claims

Intellectual property considerations may require content restrictions. Your legal team may ask you to limit the amount of information you provide, or require that readers must log into a corporate site (and agree to the site’s terms of service) before viewing information. Establishing a registration requirement means that:

  • Your web content will not be visible to Google and other search engines. Visitors cannot discover the information through a standard web search.
  • The number of people who visit the site will be reduced.

If there is litigation regarding a specific product claim, the legal team may provide you with guidelines on how to document that claim.

Warnings, cautions, and other admonitions

Some industries use standardized warnings. In the United States, for example, the ANSI warnings labels are common. There are some generally accepted principles for admonishments—for example, Danger indicates a possibility of death or injury. For software products, these standards are sometimes modified to indicate the risk to data rather than humans.

It is common to see a raft of warnings at the beginning of a document. From a legal perspective, putting warnings at the front of a document makes the document more defensible. From a reader’s perspective, it probably makes more sense to put the warning very close to the step that is potentially problematic.

Trademarks

Here are some examples of trademarks used incorrectly:

  • I Skyped my brother last week.
  • I googled, but I couldn’t find anything useful.
Cease-and-desist letters notwithstanding, it is unlikely that you can stop people from misusing trademarks in this way in casual conversation or in social media. For more formal content, however, trademarks should be used correctly (even though it is highly awkward):

  • I used Skype to call my brother. (Or, for the real sticklers: I used Skype software to call my brother.)
  • My Google search didn’t find anything useful.

Verbifying (or nominalizing) trademarks is frowned upon by the trademark owners.

Most technical documents have a list of trademarks at the beginning of the book, which looks something like the following:

Oracle, JD Edwards, PeopleSoft, and Retek are registered trademarks of Oracle Corporation and/or its affiliates. Other names may be trademarks of their respective owners.1

A more detailed version from Microsoft:

Information in this document is subject to change without notice.

Companies, names, and data used in examples herein are fictitious unless otherwise noted. No part of this document may be reproduced or transmitted in any form or by any means, electronic or mechanical, for any purpose, without the express written permission of Microsoft Corporation.

© 1995–96 Microsoft Corporation. All rights reserved.

Microsoft, MS, MS-DOS, ActiveX, AutoSum, Bookshelf, Encarta, FoxPro, FrontPage, IntelliMouse, IntelliSense, MSN, Microsoft At Work, Microsoft Press, Multiplan, Outlook, PivotTable, PowerPoint, Rushmore, Visual Basic, Windows, Windows NT, Wingdings, XL and design (the Microsoft Excel logo) are either registered trademarks or trademarks of Microsoft Corporation in the United States and/or other countries.

Apple and TrueType are registered trademarks of Apple Computer, Inc.

The Mac OS Logo is a trademark of Apple Computer, Inc. used under license.

MathType is a trademark of Design Science, Inc.

Genigraphics and In Focus Systems are registered trademarks of In Focus Systems, Inc.

NetWare and Novell are registered trademarks of Novell, Inc.

Other product and company names mentioned herein may be the trademarks of their respective owners.2

As with all of these matters, you should consult your legal counsel to determine whether a blanket “other names may be trademarks” (as in the first example) is acceptable or whether an explicit list of trademarks is required (as in the second example). If you are required to provide a detailed list, automate the production of this list, as it is in no way a value-added technical communication project. A few techniques that we have used are:

  • Default copyright/trademark list. All deliverables get the same list of copyrights and trademarks, so the list is set up once and then reused.
  • Automatically generated list from explicit markup.Each trademark that occurs in text is marked as a trademark (or registered trademark). The trademark list is generated from the marked-up items. For example:
    We use <trademark type="tm">MathType</trademark> to create equations.
  • Automatically generated list from reference list: We create a universal list of trademarks in a separate file. When it’s time to generate output, the trademark list is generated by filtering the global list to include only the items that occur in that deliverable.

The last option requires the most setup and the least ongoing maintenance work. The middle option requires the author to do some ongoing work. The first option is the simplest and most appealing if you can get your legal team to agree to it.

In addition to the trademark list in the front matter, you may also need to mark trademarks in the actual text. The traditional rule is that you must indicate a trademark on the first occurrence of that item. Unfortunately, that works better in books than in online content, where “first occurrence” a bit hard to define. Your choices for trademark indicators are as follows:

  • Do not mark any trademarks in text.
  • Mark the first occurrence in a book, chapter, or web page (preferably in an automated way; otherwise, your authors will be annoyed).
  • Mark every occurrence of a trademarked term (guaranteed to annoy your readers and, if done manually, infuriate your authors).

 

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>

Navigation