Trademark Infringements in Social Networks
Last year, in 2010, Facebook passed 500 million users. That’s more than the population of USA, Canada and Mexico put together. It is safe to say that Facebook and other social networks are very powerful and important tools of communication in many different aspects, affecting most things from your personal social life to world politics. It is also a great tool for a trademark owner to be used in brand building activities.
Most of all, the social networks are inexpensive and very speedy. A web campaign for your trademark usually costs a mere fraction of an ad campaign on TV or in other media. This is good news for the trademark owner but, regrettably, equally good news for the trademark infringer.
On the web, it is not very complicated to set up a site in a manner and quality equal to the trademark owner’s original site. As a consumer it is sometimes impossible to tell the trademark owner from the impostor. This is particularly true in social networks where the trademark owner’s communication sometimes is of a less professional quality than his communication in other media.
Naturally, trademark infringement in social networks is subject to trademark law and any legal action that is possible “in real life” is in principle possible also for the digital world. However, most social networks have their own administrative procedure and Network Administrator to handle the procedure. In order to become a user of the network you need to accept the conditions of the agreement and you are thereafter bound by the regulations.
The Statement of Rights and Responsibilities of Facebook, for instance, provide tools for a trademark owner to report infringement and request removal of infringing content. This regulation provides a quick and inexpensive alternative to court action. Of course, the only result of such action is the removal of the infringing contents, not compensation or damages, but to get the infringing trademark of the net is almost always the top priority of the trademark owner.
If you are on the other side of the administrative procedure, and you feel that content has been removed from your site by mistake, you may appeal the decision.
A trademark owner is often a strong party in “real life” trademark infringements. Often you face an infringer that is a small size entity or a private person and the trademark owner, as a large corporation, has many advantages when it comes to access to legal assistance, financial strength and endurance, media contacts etc. However, in social networks the individual has a possibility to make their voice heard, quickly and at no cost at all. Before you know it, the message of the individual can be spread around the world, sometimes with substantial effect to your image and brand. This needs to be taken into consideration before you act against a trademark infringer.
Lessons to learn for the trademark owner
1) Question your strategy on how to handle infringement
Most successful trademark owners have a good strategy on how to handle trademark infringement. However, in social networks it is particularly important to be flexible and consider that there may be different aspects to each infringement matter and the end result is more important than that you are strict in following a previously set strategy. Maybe your usual standard type warning letter is far too strict and rigid and maybe you need to examine new means of communication with your counter parties. An overall consideration is the speed of things on the web. If you want to stop the infringer, speed is of the essence.
2) Involve the legal department and the communications department
Generally a trademark infringement is handled 100% by your legal department. However, when it comes to social networks your communications department needs to be involved in the process as early as possible so that they can act against the spread of bad will and do so without delay. It is generally very important to be active in the debate. Silence is very seldom golden in social networks and it is important that the brand owner’s version of a matter is heard and presented in a sound way. Therefore, a close co-operation between the legal department and the communication department is vital throughout the process.
3) Pick your fight and accept that you are not always in control
Naturally, you need to make sure that you act strongly against infringement that is clearly of detriment to your brand. However, cases where you have a little to gain and risk a lot of bad will should be dealt with only after careful consideration and sometimes even left alone. In social networks, you risk a lot of bad publicity if you act unduly rigid and formalistic.
4) Stay true to your values and keep you promises
A good way to avoid criticism and negative campaigns is to be very careful about the values and promises that are incorporated in your brand and to stay true to these values and keep the promises. This way, you can stand tall when you enter debates involving your brand in social networks. Sooner or later, my guess is that you will have become an active user on behalf of your brand.
Kristina Fredlund, Attorney at Law, European Trademark Attorney