Socially Active Networking? - Fordham Intellectual Property, Media & Entertainment Law Journal
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Socially Active Networking?

Socially Active Networking?

Meet Tivity, the first socially active network.  You can become acquainted with Tivity through its website, accounts on LinkedInFacebook, and Twitter, through its promotional video, and on its page specifically designed for investors.  Thanks to what’s being cooked up at the NYU-Poly Varick Street Incubator, users will soon be able to “schedule, personalize, share and manage their active lifestyle through an online network filled with content from local health clubs, fitness studios, athletic organizations, and other venues offering activities.”  Tivity co-founders, Jason Scherr and Matthew Sigman, are on a mission to “successfully develop a third pillar of social networking that simplifies and streamlines users’ real-life activities and experiences outside of Facebook and LinkedIn.”

Read: instead of browsing Facebook to see what people have been doing, you will soon be able to log onto Tivity, quickly find out what athletic activities are going on in your vicinity and join the fun if you are so inclined.  From spin class in a local fitness studio that happens to have vacant space for a few hours, to a game of dodgeball in a nearby underutilized church recreational room – a plethora of activities will be at your fingertips.  You will also be able to organize a “Tivity” of your own by coordinating with an approved venue.  So long as you can think of an activity, you will be able to organize it and invite people to join you.  In addition to your social and professional networks on Facebook and LinkedIn, you will soon be able to build an active network comprised of people who share your athletic interests and skill level.

Co-founders Scherr and Sigman conceived their idea in May 2010, and since their acceptance into the NYU-Poly Varick Street Incubator, in September 2011, they have been working tirelessly to turn Tivity into a reality – both in the virtual and real worlds.  They have recently hired a Chief Technology Officer and a Software Engineer, solicited numerous investors, collected data from prospective host venues, organizers and participants, and sought advice from several attorneys.   

When eager Tivity-seekers visit the network’s website, they are greeted with the message “[i]nterested? Get on our waiting list and we’ll bring Tivity to you as soon as it’s ready. Like a freshly baked cookie, except it’ll make you thinner.”  What is happening while this treat is being prepared?  For starters, like with most start-ups, the founders have been confronting numerous legal issues.  Stemming from the many start-ups recently formed and the prevalence of initial legal issues with which their founders are faced, a Wall Street Journal’s Venture Capital Dispatch blogger has recently pointed out that on one law firm’s website, entrepreneurs “can get forms that show how to create a Delaware “C” corporation. They can also generate a term sheet, based on model documents from the National Venture Capital Association, that could guide them as they negotiate seed funding from an investor.”  While the incorporation and negotiation of funding processes might seem straightforward enough to navigate, many other issues are involved in beginning a start-up.  For example, the founders of tech start-ups must also take care to protect their intellectual property.

After incorporating, the Tivity co-founders registered a service mark with the United States Patent and Trademark Office (USPTO).  While a trademark refers to goods and products, a service mark refers to “any word, name, symbol, or device, or any combination thereof,” which is either used or will be used by someone in commerce who applies to register, in order to “identify and distinguish the services of one person, including a unique service, from the services of others and to indicate the source of the services, even if that source is unknown.”  15 U.S.C. § 1127The name Tivity is a unique service mark, containing a distinctive symbol.  Its colorful and clever logo contains a play on the arrangement of Tivity’s inner letters, “i v i.”  The outer “i” characters are dressed up to look like stick figures, and the “v” resembles the path of a ball being bounced between them.  Because of this ingenious crea‘tivity,’ it was essential for the co-founders to register their service mark in order to prevent future businesspeople from using such a name or symbol to describe similar operations.

With its business model intact, programmers and software engineers developed the network’s platform, and various non-disclosure and confidentiality agreements were signed.  It is vital for the ideas behind the software to remain property and trade secrets of Tivity.  Generally speaking, trade secrets can be any kind of “financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing.” 18 U.S.C. § 1839(3).  Trade secrets can be subject to protection if “the owner thereof has taken reasonable measures to keep such information secret; and the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, the public.”  Id.  With proper agreements in place, it can become easier for a company to bring a claim of trade secret misappropriation, as it can argue that reasonable steps were taken to protect its confidential information.

More than an online-only tech start-up, Tivity faces an additional set of legal challenges.  Because the socially active network lures people online only to push them out into the real world, not only must virtual world related legal issues be sorted, so must those that lurk in reality.  Since Tivity’s success hinges on activities that actually take place, much work must be done in terms of building relationships with venues whose spaces will be utilized.  Once a list of venues is compiled, the compilation might be protectable as a trade secret, depending on whether it gives Tivity a competitive advantage in the marketplace and the level of measures taken to guard its confidential nature.

Once this sampling of legal issues, among others, is addressed and the software is perfected, Tivity users will be able to host, create, and join activities.  Before you know it, you will be able to build a network of athletic friends with whom you can enjoy an active lifestyle.



Heather Crawford