When a new marketing tool such as social media comes along, the opportunities offered can be incredible. Marketers, particularly digital marketers, need little persuading of its advantages. However, beyond the reputational risks – often discussed at marketing conferences – that inevitably come with profile-raising tools, marketers also need to consider other associated legal risks, such as intellectual property. This is particularly relevant to instant media like social Facebook and Twitter where the consequences of one small mistake can balloon within hours.

Years ago, lawyers had plenty of time to run clearance searches on new brands and sub-brands and then protect them with trademarks. Nowadays, with a massive increase in different media channels, it is important for marketing and legal departments to work together to clear trademarks for use and steer their respective businesses on brand selection.

Together, we need to consider all the possible applications of brand assets across all the different forms of social media available and monitor the ever-growing digital world to ensure others are not misusing your brand.

Ten different social media platforms could mean more than 100 different applications of all your brand assets – whether it is your logo, your brand name or your strap line. You need to anticipate all the different potential uses of your main and sub-brands: advertising, app icons, hashtags – these could all be worth protecting through trademark rights, but also potentially infringe other parties’ existing rights.

Some companies like the Coca-Cola Company have already begun trade marking some of their hashtags: ‘#smilewithacoke’ and ‘#cokecanpics’. Although few competitors are likely to use these hashtags, these trademark rights may deter them from using similar hashtags for their own campaigns. Whether or not you choose to protect your hashtags with trade marks, you should treat hashtag strap lines like any other strap line and, where appropriate, clear it for use before hitting “Tweet”. Strict guidelines should be in place to cover all social media posts to ensure any infringement risk is minimised.

When third parties use your brand on social media without consent, you need to consider whether to do anything about it and how to act. Even if you do not like what another brand is doing, you need to consider whether it presents enough of an issue for your brand to warrant action. Like with any defensive action, the monetary and reputational risks of pursuing infringers always need to be taken into account.
With the likes of Facebook, Twitter and Instagram here to stay for years to come, businesses need to ensure that they have proper processes in place to ensure their marketing in the social space is as compliant with trademark law as any other channel.


By Matthew Sammon, Head of Trade Marks, Marks & Clerk Patent and Trade Mark Attorneys

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