Social Media and Your Brand: Be Proactive, Act Fast

There are 800 million Facebook users; 100 million on LinkedIn.  And there are billions of users worldwide on social media sites.  Social media is the future of e-commerce, laid out Rob Holmes, of IPCybercrimes.com, during a recent American Bar Association Section of Intellectual Property Law panel.

But social media and law generally move at very different paces:  social media conjures up thoughts of rapid, instantaneous interactions, a cavalier approach and a lack of privacy; law, on the other hand, tends to be slow and steady, cautious and careful, with a high level of confidentiality.  In describing the differences, moderator Matthew Asbell, of Ladas & Parry LLP, hinted at the challenges at the crossroads of the two in “Licensing, Control and Monitoring of Trademark Use on Social Media Websites,” a program held as part of the section’s 27th Annual Intellectual Property Law Conference in Arlington, Va.

Asbell said that in social media, trademarks are now incorporated in usernames, web addresses, user profiles and other relatively static content; conversations and other relatively dynamic content; and advertising and product placement.

Kelly Slavitt, with Reckitt Benckiser Inc., addressed how trademarks are being impacted by social media.  First, the ease of creating and sharing content immediately and vastly offers a new page in both protecting and promoting one’s trademark.  There is certainly a greater risk of online imposters and fakes.

Holmes suggested that businesses register their brand name on as many social networks as possible.  One tool that can be utilized to check on availability is KnowEm, which advertises that it allows the user “to check for the use of your brand, product, personal name or username instantly on over 590 popular and emerging social media websites.”  Fawn Horvath, with Macy’s Inc., suggested another tool, the username registration service of Namechk.com.

If there are breaches to your trademark, Horvath warned, your company is not going to remain a trusted brand.  There are different types of infringement, as Horvath spoke to.  There is a “hit and run” infringer, for example, that can hack a company gift card, draining its value; there can also be product-specific infringement.  Horvath explained an incidence of phishing wherein a job posting was copied.  Respondents were told they had excellent credentials for the job, and the fraudulent company or individual then requested a credit report of the would-be job applicants.

Companies must wisely choose their weapon in fighting infringers, and do so with the appropriate tone.  For example, some fans “like” a brand name or use a spin-off of a company or nonprofit name because they are supporters or admirers of the cause or of a company’s product.  A company doesn’t want to quell the enthusiasm of a fan so it will want to take a gentle approach in asking the individual to take down content.  In other instances, the use is malicious and the company will want to come across with a tone that means business.

There are times when a company may not want to react to posted negative content.  If it’s an infringement that will be gone or off the radar screen in 12 hours — for example, low on the Craig’s List — it may make more of a media frenzy if the issue is raised, Slavitt noted.

It’s also important to be proactive in protecting one’s name.  Horvath suggested a monitoring-and-enforcement partner, one that understands your company’s priorities and can respond quickly.  A company should have an internal process in place with respect to acting that includes an established list of contacts to move forward with an enforcement; inclusion of one’s security/systems team; and improved odds of finding the culprit by having an incident reporting mechanism — for example, knowing the job listing number that was being tampered with to more easily track down the tampering.

Additional means of being proactive, as Slavitt advised, include developing social media rules for your product websites and having social media policies for employees’ brand use.  Asbell added that brandowners who license their marks may need to require that licensees have similar employee policies.

Use of a brand trademark is such a visual endorsement that Horvath advised being cautious about allowing the use of one’s logo.  Blogging is a tool that marketers love.  One tip for working with your marketing team in protecting a company’s brand, as described by Slavitt, is to ask the marketer to step away and consider how he would feel if a competitor was infringing in that way on his name.

Contracted bloggers need to understand disclosure rules — for example, if they are receiving something of value that must be disclosed as part of the bloggers’ endorsement or laudatory words.

Additional panelists for the program included Robert Doerfler, of SVP Worldwide; and Catherine Bridge, of The Walt Disney Company.