The emergence of social media has impacted our lives in various ways. However, the impact on brands and how they communicate, grow, and interact with consumers has been transformative.
In particular, social media has reshaped how trade marks are used and misused. A single TikTok or Instagram post can easily reach millions within hours, which provides brand owners with fantastic new opportunities for growth but not without evolving risks.
Trade Mark attorneys are familiar with how the digital environment is changing and expanding the concept of trade mark use. It forces us to adapt how we deal with protection and enforcement, and it is important that brand owners do the same.
As mentioned, social media can propel a brand forward, but it can also do the opposite. There are two key concepts when considering the impact of social media on your brand:
- Viral content can propel your brand to fame in hours, but it can also do the same for copycats.
- User-generated content such as remixes, parodies, even reviews can have legal implications.
This has resulted in new challenges in the sphere of trade mark law whereby features such as hashtags and handles/usernames can function as identifiers which raises questions about registrability and enforcement. Additionally, copycat accounts are more easily able to mimic the look and feel of genuine brands.
Memes, parodies, and commentary are sometimes crossing the line into unauthorised commercial use of a brand. At times, the misuse of brands is spreading faster than takedown tools can respond.
Social media has resulted in many pros and many cons for enforcement for brand owners, including:
Pros:
- Faster visibility of third-party infringement;
- Digital evidence which supports claims of infringement;
- Direct communication whereby brands can publicly correct misinformation
Cons:
- Global enforcement inconsistency whereby different countries and platforms apply different rules therefore each jurisdiction must be dealt with separately;
- Increased risk of brand dilution whereby memes and viral edits can weaken a brand’s trade mark distinctiveness;
- Large scale impersonation;
- Containment - once something spreads it can be hard to contain
How we can assist brand owners in protecting their brand:
- Register user handles and hashtags proactively - futureproof your portfolio by securing key identifiers early;
- Implement monitoring tools - platforms offer varying levels of support, so using independent monitoring can be critical. Such tools can include watch notices and trade mark Registry UKIPO / EUIPO eAlerts and general surveillance of specific social media platforms;
- Develop a rapid response strategy with your Trade Mark Attorney. Speed matters therefore, we recommend devising a plan to escalate matters quickly;
- Educate your marketing teams - Brand owners should know how to use their own trade marks correctly too and to understand what threats exist to the protection of their trade marks;
- Review and update your enforcement policies - Not every misuse requires a heavy handed approach. Sometimes diplomacy preserves goodwill.
In summary, social media is not slowing down and neither are the trade mark challenges it creates. But with a proactive strategy and informed decision making, brand owners can harness the benefits while mitigating the risks.
