Introduction
New marketing strategy, but same old rules apply
Navigate between "bad buzz" and brand awareness
Obvious trademark misuse or appropriation
Misleading advertising
Mitigating risks with well-written partnership agreements
Globally, society is shifting to social media and online marketplaces. This trend has created incredible opportunities for some, and significant losses for others. The traditional mediums for advertising, such as print, radio and television, are losing significant traction to digital spaces. Brand owners are trying to ride the wave by finding new ways to connect with the younger demographic. As such, the demand for enhancing the desirability of brands and delivering products to targeted demographics is growing rapidly; brands are increasingly hiring the services of social media influencers.
As with all new practices, many legal questions may arise. To that end, this article clarifies some of the grey areas regarding trademark protection as it relates to social media influencer marketing.
New marketing strategy, but same old rules apply
There are varying definitions of an "influencer". The term generally refers to someone "who affects or changes the way that other people behave". Influencers could be compared to opinion leaders, and their recommendations are highly valued by their followers.
How does a brand owner and an influencer work together? Essentially, a brand owner and an influencer form a partnership wherein a brand owner provides incentives to the influencer to create and post content for them. The post could be a product review, a recommendation, a promotion or simply the mention of a trademark.
When posting content on an online platform, the general rule is the same as it is anywhere else. If the content cites another person's trademark, brand name or logo, the influencer must obtain specific permission. In the digital world, where copying and pasting makes it easy to repost other parties' intellectual property, brand owners need to be aware that they, unfortunately, cannot control every aspect of their digital presence.
Navigate between "bad buzz" and brand awareness
Handling wrongful use can backfire in an unpredictable way and brand owners need to take this into careful consideration. In the non-digital business world, lawyers frequently send cease and desist letters to businesses that are infringing trademarks or copyrighted material. However, in the digital world, if a brand owner sends a cease and desist letter to an influencer misusing their IP rights, it can generate "bad buzz" and unwanted reactions. Essentially, such a response can create a viral backlash, shedding a bad light on the brand owner and resulting in more harm than benefit for the brand.
Therefore, brand owners should take a new approach to the use of their IP online. Instead of fearing brand dilution, many brand owners are accepting the fast pace of the Internet and loss of control on social media in exchange for more interaction, the feeling of authenticity and brand awareness.
Obvious trademark misuse or appropriation
Nevertheless, brand owners should remain alert to the type of unauthorised appropriation that is the most problematic. For example, to post on a social networking platform, users must choose a pseudonym, and it is not uncommon for malicious users to choose a name that implies that they are the official account or a distributor affiliated with a brand. Sometimes, they even go as far as to include a registered trademark, such as @HERMÈS®_official, @CHANEL®_distributor or @Real_LOUISVUITTON®.
As a preventive measure and in an attempt to prevent this phenomenon, major platforms such as Facebook, Twitter, Instagram and YouTube verify the legitimacy of public figures, including famous brands. This verification process gives consumers of these social networks more confidence in the accounts marked as certified.
In response to brand owners noticing that their intellectual property is being used without permission, online selling platforms such as Amazon and eBay have developed efficient processes to allow the registration of products and IP rights to simplify the removal of suspicious listings.
Another good practice to stay in control is to keep a whitelist of all legitimate sellers. This is a useful step to identify any suspect or unauthorised sellers. Online marketplaces such as Amazon and Alibaba also have a system where users that repeatedly infringe IP rights are blacklisted. These large platforms have also developed effective notice and take down systems.
By becoming more familiar with these different platforms, brand owners can maintain some control and quickly stop a wide range of infringements.
Influencers could also be held liable for false or misleading advertising. Every statement made by an influencer could result in liability. If it can be proven before a judge that an influencer was fully aware that the product they were promoting infringed the rights of a third party, the influencer and the company that contracted with them are likely to be found guilty of trademark infringement, either jointly or individually. The judge will also take into account the extent to which the product advertised by the influencer could cause confusion in the public mind. This likelihood of confusion is the cornerstone of any claim of trademark infringement.
Mitigating risks with well-written partnership agreements
A brand owner/influencer partnership agreement must be carefully examined before considering any collaboration. It is essential to analyse the environment, as well as the product, to be promoted. It must not infringe upon any party's prior rights, particularly those of the brand owner's competitors.
A well-written agreement should:
- assign ownership in the content created;
- foresee the liabilities of the influencer in case the content created damages the image/reputation of the brand owner;
- foresee the liabilities of each party in case the content infringes third-party rights;
- clarify in which contexts the brand owner can reuse the content created for their own marketing initiatives; and
- foresee the possibility for the brand owner to check and edit the content that the influencer will post.
Paid brand owner/influencer partnership agreements are a fairly new territory and a basic contract simply will not cover the unique details of social media environments. When it comes to copyright options, trademark rights, idea ownership, crafting intentional usage and ownership rights, clauses in the contract are paramount.
For further information on this topic please contact François Willems at GEVERS by telephone (+32 2 715 3711) or email ([email protected]). The GEVERS website can be accessed at www.gevers.eu.