Social media has a vital role to play in establishing and maintaining brands, but there are always risks. While it can be hard to go viral for the right reasons, it’s easy to go viral for the wrong ones. However, you’ll be pleased to know that there are certain steps you can take to protect your brand and reputation online by using IP rights. Here are seven steps to consider and get you started.
1. Protect your brand assets with trade marks
Protecting your brand assets like your name, logo and strapline as trade marks should enable you to maintain and, if necessary, regain control over elements like domain names, handles, images and hashtags on social networking sites. Such rights can be used to prevent people from hijacking or ‘piggy-backing’ on your social media campaigns by using your brand assets without permission. They’re also what marketplaces such as Amazon require as proof of your ownership to enrol on its Brand Registry and what domain name dispute proceedings rely on to help you to challenge names that should belong to you.
2. Protect your innovation with patents
Any brands which invest in R&D to leverage ever-decreasing advantages over competitors should make use of patent protection. For example, Amazon has filed for a patent in respect of an app that enables you to try on outfits with a ‘virtual mannequin’ created from your social media photos and can link with your calendar and weather apps to ensure that you’ll be dressed appropriately for any occasion. By securing a patent, Amazon can prevent any competitors from protecting or using the same idea. As a result, it can buy time and space to potentially establish itself as a market leader.
3. Recognise and make use of your unregistered rights
Unregistered rights are often highly relevant when dealing with social media issues. Copyright and design laws, which traditionally provide protection for the appearance of functional and ornamental objects including fabrics, shoes, handbags and clothing, are being extended to cover the more abstract elements of brand offerings. The law of passing-off can also prevent anyone from misrepresenting a connection with a brand that doesn’t exist. As these are rights that require proof (as opposed to registration) to enforce, the surrounding law is less prescriptive and can therefore be easier to apply to less traditional disputes, like those on social media.
4. Be careful when sharing, retweeting or re-posting
Copyright infringement actions are increasing in volume as a result of our increased social media use. A US agency recently tried to sue model Gigi Hadid for re-posting a paparazzi photograph of herself. Although the case failed on a technicality (and whether the agency would even have bothered if the subject wasn’t able to stump up millions of pounds worth of damages), this is a risk you take every time you share or re-post someone else’s content — especially as a high-profile brand.
Another key issue arises with virtual/digital influencers, used by most retail brands on social media to provide visual representations of brand values. As realistic as these may appear to their millions of followers, such collaborations are an ‘artistic creation’ and, provided that they’re original, may benefit from copyright protection. But as with the infamous ‘monkey selfie’ dispute, the ownership of the copyright may be up for debate unless it’s clarified from the start.
5. Consider your IP rights before collaborating with other brands
Done well, a tie-up drives traffic to both brands’ sites and consequently raises their respective profiles, even introducing them to new consumer demographics. However, care must be taken to ensure that each party’s rights are adequately protected. The ownership of any resulting IP must be made clear from the outset to protect creative input, allow freedom of exploitation and prevent major issues down the line.
6. Don’t plagiarise
This one might seem obvious, but many brands still fall foul of stealing from others. Troubled retailer Forever 21 was recently on the receiving end of an action in the USA from Ariana Grande. The lawsuit claimed that Grande rejected an approach from Forever 21 to collaborate, with the brand allegedly then hiring a lookalike model and plagiarising imagery from Grande’s latest video on its Instagram account. Grande argues that this implies to consumers an affiliation between herself and Forever 21 — and with a single Instagram post by Grande’s account said to be worth a six-figure sum, she’s suing for false endorsement, trade mark infringement and copyright infringement. This could turn out to be a very costly mistake for Forever 21, which already faces a potential bankruptcy filing.
Another case in point which reached public discourse dates back to 2015, where Top Shop was successfully sued for selling t-shirts featuring Rihanna’s image. Although Top Shop owned the copyright in the image, which it had bought from an independent photographer, previous negotiations between the retailer and the pop star were considered relevant when the court decided that the average consumer would assume that the t-shirts had been endorsed by Rihanna.
7. Protect yourself and enforce your rights, but don’t take it too far
In some instances, using IP rights to protect your brand online can be taken too far and cause a negative reaction or be disproportionately expensive. Think about the never ending patent disputes between Samsung and Apple, or the latest spat between Lizzo and Mina Lioness over the phrase “100% that bitch”. None of the parties come out of these situations looking great. Creative solutions might have been a better way to resolve matters, like the infamous Netflix/Stranger Things cease-and-desist letter.
New Yorks’ Hudson Yards also discovered this when it opened earlier this year. Visitors capturing any footage of its ‘Vessel’ building — no matter how far away from the building you are — automatically grant its owners a worldwide, irrevocable, transferable, royalty-free copyright licence to use any content taken on the premises (including names, voices, likenesses and “all other aspects of [a] persona”). While this is technically legal, and Hudson Yards isn’t the only company to do this, the adverse publicity it received hasn’t disappeared and has negatively affected its brand value. Brand message is as much a vital consideration when enforcing a brand as it is when creating one.
Most issues are avoidable
Ultimately, while there are always risks when using social media to further your brand, the potential benefits when you get it right are too tempting to miss out on. By having registered IP rights in place before starting any social media activities, brands are in a strong position to prevent unauthorised exploitation of their materials online. When dreaming up new collaborations or influencer campaigns, ensuring that appropriate agreements are drafted and agreed to at the very start can prevent most future problems.
It’s always wise to seek professional advice before trying something completely new which may be close to crossing a line — the mistakes mentioned in this article are surprisingly common and could have easily been avoided by consulting with an IP attorney.