Facebook has more than 350 million users, Twitter boasts 32.1 million, and MySpace attracts over 115 million to its site each month. The number of people using social media makes trademark infringement and brand confusion as easy as creating a username and password.
In Dallas alone, where we are based, more than 700,000 area businesses have a Facebook Page, which are customizable mini-sites geared toward organizations, products, or public personalities. In reaching out to their target demographics, these companies allow users, or “fans” of the page, to post comments, view news and information, and basically have a voice about that company. With tools like these open to the public, how are companies able to protect their brands and trademarks in a social media-run world?
There are some proactive ways to beat counterfeiters and imposters to the punch. For one thing, it may be beneficial to have a few employees or outside contractors regularly check social networking sites for unauthorized use of your brand, bad press, trademark infringement, and the sale of counterfeit goods. Of course, the best defense is a good offense, so join the online community and create your own positive buzz. It’s a relatively inexpensive way to advertise and reach consumers, who may not always be reached by traditional methods.
Also be sure to register your company or brand name with key social media sites. This can be a simple process and probably the easiest way to secure your company’s reputation on social media sites. By registering your name or brand, no one else can. The trouble lies when someone else has already secured your name. If that happens, there are several steps you can take to ensure that your social media presence is your own.
Other options may include calling your in-house counsel or litigation, but before taking any sort of action, first analyze the seriousness of the offense. Taking a tough stance against a fairly harmless infringer can backfire and cause negative press (or in some cases, benefit the offending party). Sometimes it’s more effective to send a letter explaining the situation and asking the party at fault to fix the problem.
Regulations and organizations are in place to remedy infringement when letters and niceties don’t work. The Digital Millennium Copyright Act (DMCA) may be helpful in copyright infringement cases because many social networking websites have guidelines that mirror DMCA requirements. The Word of Mouth Marketing Association (WOMMA) is an official trade association representing the interests of the social media industry, with an ethics code requiring members to adhere to certain guidelines, such as disclosure of identity, genuine honesty in communication, and compliance with media-specific rules.
Social media and social media law has not only opened up new avenues for communications and brand marketing, but has also added whole new ways to infringe on those efforts. Making sure that your brand and company is protected in cyberspace isn’t just important; it’s an integral part of 21st century communications.
Darin M. Klemchuk is an intellectual property (IP) trial lawyer, with significant experience enforcing patent and trademark rights. He is a founding partner of Klemchuk LLP.