Since the goal of brand management is to optimize the market’s perception of a brand, it follows that effective brand management requires establishing and maintaining a relationship with the target market. Recently, much of relationship development has been accomplished through social media. Although, brand awareness can expand with social media, but companies should be skeptical towards third-party statements regarding their brand. In fact, legal recourse is available against third parties who engage in trade libel, defamation, and trademark or copyright infringements.
How Can Trademark Misuse Occur on Social Media?
Considering the risk that a negative criticism of a brand on social media will quickly harm the brand’s reputation, it is important for a company to be aware of the types of trademark misuse or infringement. The line between constitutionally-protected free speech and violations can be blurry. For instance, a social media username may be confused with an official brand account, either coincidentally or by imposters (i.e., posing as an employee or someone sponsored by the brand). Further, user statements may improperly dilute a trademark under the Federal Trademark Dilution Act through blurring (i.e., associating a mark with other goods/services) or tarnishment (i.e., associating a mark with substandard goods/services).
Yet, because a company risks liability under 17 U.S.C. § 512(f) for bringing false infringement claims, and more generally because monitoring all social media platforms can be expensive, it is best to become familiar with the distinctions between actionable misuse and legitimate fair use. By doing so, a company can determine when it is appropriate to address negative publicity.
What Should a Company Facing Trademark Infringement Do?
As a first step, a company should simply take a screenshot or otherwise preserve questionable third-party trademark infringement to serve as evidence in legal proceedings. Then, the company should investigate to determine whether further action is necessary or even appropriate under the circumstances. The factors that a company should consider, include, the nature of use, significance of trademark, source of potential misuse, and length of time the use existed online.
For example, a humorous use (i.e., parody) is less likely to be considered harmful than an intentional deception. In addition, it may be wise for a company to overlook use of insignificant trademarks and focus on its more reputable brands. Further, a company should mainly be concerned with statements found on relatively important websites or made by relatively important people. Lastly, the longer the misuse has existed without detection, the less likely it will be actionable.
Moreover, because it would be impractical, if not impossible, to successfully monitor every statement made on social media about a company’s brand, an internal policy should be implemented to report suspected misuse. Additionally, a plan of legal action should be established to mitigate damages.
At our law firm, we assist in clients in legal issues related to preventing and addressing trade libel, defamation and trademark infringement. You may contact us to setup a free consultation.