Trademarks and Social Media (Pt. 2)
Earlier this week, I talked a bit about trademarks and how they work. Today, however, I’d like to discuss the real way they work on social media platforms.
The answer: very, very well.
In fact, they work almost too well. You see, trademarks are all about control. They are about ensuring that everyone knows exactly who is standing behind a good or a service, and if you lose control of your trademark, it will cease to mean anything. If your trademark ceases to mean anything, then it ceases to be a trademark.
But social media only works if you give up a degree of control. In the pre-Internet world, if you were to see someone using your trademark without permission, you would immediately send them a demand letter and (if they ignored you) sue them. Today, the calculus is a bit more complicated. First, your demand letter may very well end up posted online, and you may well be subject to public mockery. Second, depending on what exactly is being done with your mark, stepping in may do more to harm your brand than to help it. You miss out on the viral power of social media and the insidious ways that it can burrow into the tastes of the public.
So, how can you tell when a social media use should be stopped, and when it should be ignored? Of course, there is no bright line rule (the facts can always have an impact on whether taking action is justified) but there are some rules of thumb that are worth keeping in mind as you watch third parties use your trademark on Facebook, or some other powerful media platform that didn’t even exist a few years ago.
(1) Is someone pretending to be you. This is obviously the most serious type of online trademark infringement, and should almost always be addressed aggressively. In a wired world, the amount of damage a rogue actor pretending to be you can accomplish in a few short days cannot be overstated.
(2) Is someone pretending to be affiliated with you? This is a bit more subtle. Are they really trying to imply association, or are they simply big fans? Are there ways to work with them to alter their positioning so that it is clear that while they like you, they aren’t actually you? If someone is trying to get a free ride off of your good will for their own commercial purposes, or saying things that are either wrong or troubling, that can be a serious problem, but you have to calculate whether you are benefiting too.
(3) Is someone counterfeiting your products? This falls into the same category as (1). This can cause real harm, and should be stopped. Few people would even consider this controversial, as it is very much in the spirit of consumer protection.
(4) Is someone trying to direct traffic to themselves using your name? This is, again, a bit more complicated. Much of what is considered “domain name infringement” or “cybersquatting” falls here. Some of this can be quite nefarious, and in fact is redirecting traffic that should honestly be yours. That is something that is best addressed on a case by case basis, but shouldn’t be ignored. It can also arise in the context of keyword advertising purchases — someone buys your trademark as a search term and tries to get consumers to visit their site instead of yours. This issue is still being actively litigated, but while many of the cases seem to imply that keyword buys are perfectly legitimate in a great many contexts, there are still scenarios that may present issues and are worthy of discussion with counsel.
(5) Is someone trying to talk about you? This is, without a doubt, the most common “trademark” issue on social media platforms. The whole point of brand participation in social media is to inspire conversation. But not all conversation is positive. Some of it may be wrong, or harsh, or filled with annoying comparisons. But that is often the price of admission. And many of these uses are “fair” uses privileged under either the Lanham Act or the First Amendment. Being seen as an online bully can often be worse than whatever is being said about you, and trying to make tenuous trademark arguments to stop it can often backfire. Meeting bad speech with more speech is often a better solution in this context.
So in other words, the basic approach to trademark use on social media platforms is “think before you do anything you may later regret” but don’t necessarily let that stop you from protecting your rights where it is appropriate. The same laws apply online — the only real change is that everyone now has a megaphone, including your consumers. Remember that, and everything will work out in the end.