Social media has become a major marketing tool for many companies. It provides an unprecedented number of opportunities for a company to engage with customers, develop its brand identity, and promote its goods and services. However, while social media allows positive information to travel quickly and extensively, harmful information can also go viral within minutes. Social media also presents a greater potential for brand misuse and abuse. Brand owners must be mindful of the issues and risks that social media presents, how to enforce their rights through the various social media sites, and the consequences of failing to do so. Many companies have implemented detailed social media policies (which is a good process for companies that maintain a social media presence). But without such policy in place, what can you do to avoid and address the challenges in the ever-expanding social media age?

First rule of thumb - the best defense is a good offense!

Be proactive. You should not only obtain federal trademark registrations for your company name and primary trademarks and brands, but also register them on social media platforms. If you do not own the handles, usernames, and pages on the major social networking platforms, your company’s valuable IP is at risk. Proactive trademark and social media registration of your brands and trademarks can prevent a loss of time and expense in reclaiming your marks.

But even taking these proactive measures is not enough. You should routinely monitor social media platforms for infringement and misuse of your marks. Although many tools and monitoring services are available, internal monitoring is a cost-efficient and effective tool to combat infringers and unauthorized use of your IP on social media platforms.

So what do you do when you discover misuse of your brand on social media?

It is critical to have a strategy and process in place to address such misuse. Failure to enforce your trademark rights may not only result in harm to your brands and trademarks but can also lead to the loss of rights in certain circumstances. Most major social media platforms have procedures in place to help address allegations of trademark infringement. Leveraging these tools can be more cost-effective than traditional methods of enforcement such as cease and desist letters and litigation. But be aware of the limitations of what the various platforms can do — and will (or will not) do — to help companies protect their brands. In some situations, more aggressive and traditional approaches to enforcement may be necessary. At that point, it is best to contact an attorney with experience in this area to determine the best way to proceed.

Given the expansiveness of social media, it is unlikely that you will be able to stop all infringement. The key is to prioritize enforcement efforts based on your brand, your business, and the involved risks. Also keep in mind that use of your marks by others on social media does not always constitute infringement and can even turn into something positive. For example, when a major brand owner discovered that a Facebook page started by a couple of fans had obtained millions of followers, the brand owner agreed to partner in the management of the fan page. So even when enforcement is warranted, a company should carefully consider the extent of the threat to its brand and think twice before taking aggressive action, especially against customers and fans. The bad publicity can result in more harm than good.

Despite the challenges presented by social media, most brand owners would agree that the benefits provided by social media outweigh the cons. The key is to develop a plan on how to use, police, and enforce your trademarks and brands on social media. Otherwise, you may find your brands at serious risk.

For more information on this topic, please visit our Social Media Law service page, which is part of our Internet & eCommerce Practice.

Klemchuk LLP is an Intellectual Property (IP), Technology, Internet, and Business law firm located in Dallas, TX.  The firm offers comprehensive legal services including litigation and enforcement of all forms of IP as well as registration and licensing of patents, trademarks, trade dress, and copyrights.  The firm also provides a wide range of technology, Internet, e-commerce, and business services including business planning, formation, and financing, mergers and acquisitions, business litigation, data privacy, and domain name dispute resolution.  Additional information about the Internet & eCommerce law firm and its Internet & eCommerce attorneys may be found at www.klemchuk.com.

Klemchuk LLP hosts Culture Counts, a blog devoted to the discussion of law firm culture and corporate core values with frequent topics about positive work environment, conscious capitalism, entrepreneurial management, positive workplace culture, workplace productivity, and corporate core values.

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