Brand protection and social media

Image courtesy of tungphoto/ FreeDigitalPhotos.net

Image courtesy of tungphoto/ FreeDigitalPhotos.net

Whilst the internet world is moving through Web 3.0 and on to Web 4.0 (if this doesn’t mean anything to you then this may help) brand owners are only just waking up to Web 2.0 (that’s social media for those of you who can’t be bothered to click on the above link). Actually having said that brand owners are waking up I will back track a little that by saying that actually brand owners are currently reaching for the snooze button whilst simultaneously kicking the cat off the bed and knocking over last night’s drink i.e. they haven’t woken up yet!

I think it’s safe to say that all major brand owners will have strategies in place for registering various domain names incorporating their trade marks, at least in their key territories, some of those brand owners will also pursue trade mark registrations for their trade marks, in their key territories. However very few have procedures in place for the registering of usernames on social media websites. This can bring about some very real problems which, due to the public nature of such sites, can quickly become high profile issues for the brand with potentially highly damaging consequences if the issue is not dealt with very carefully.

Let’s look at a recent example. Mr Robin Van-Persie, whilst I am a staunch Sotonian and follower (and season ticket holder) of the mighty Southampton FC I do also follow football in general. Those of you that also follow football will likely be aware of the exploits of a certain club from Manchester, Manchester United. On Monday of last week Utd won the English Premier League title thanks, in part, to a hat-trick from Mr Robin Van-Persie.  Delirious Utd fans (clearly they haven’t experienced the real triumph that can only be felt with a Johnstone’s Paint Trophy win) went straight on to Twitter to congratulate the club and in particular Mr Van-Persie. One fan tweeted @RVP and others soon followed, unfortunateyl the @RVP Twitter handle is that of Ravi Visvesvaraya Sharada Prasad, a 52 year old IT consultant in India. According to the BBC article Prasad’s Twitter handle received some 10,000 mentions and 4,000 – 5,000 new followers in less than 24 hours. Now Prasad has taken it all in good spirits and the incident has not caused any damage to Manchester United or Mr Van-Persie. However the Twitter handle (i.e. username) could easily have fallen into the hands of a third party whose purpose was to damage Mr Van-Persie’s reputation.

Now I’m pretty pleased with myself for shoe-horning a football reference into this post but I guess I should move on to more substantive matters…

In an ideal world a brand owner would acquire usernames for their trade marks on all relevant social media websites. If the brand owner has a large portfolio then this can be an extensive and time consuming task that is likely, at present, to fall in the lacuna between the legal and marketing teams. It is therefore important that one of these teams (probably the legal team) takes responsibility for registering social media usernames, this should take place ASAP and certainly before a brand is known to the public. Failing to do so may result in a third party “hi-jacking” the brand on that particular website.

The more bullish legal teams might think that they can ignore such matters until they become an issue and then steam in with overly aggressive letters before action and attempts to make the website owner take down the offending username. This can have disastrous consequences. Social media sites are just that, social. Brand owners need to be particular conscious of everything that they say both on the platform itself and also to its users in other communications. The general maxim that needs to be used is that you must be happy for anything that you say to appear online. If not then you are likely to have a nasty surprise when the cease and desist letter from Jamie “the pitbull” in litigation ends up trending on Twitter having threatened a 12 year old brand fan with a High Court claim, injunction, taking away their toys etc etc.

Instead the first step is to send the user a polite message, email (or letter) notifying the user of the brand owner’s rights and requesting that they cease using the username in question. Some brand owners do this well, some do not, my personal favorite however is a cease and desist letter from Jack Daniel’s which not only had the desired effect of the third party ceasing use of the infringing advertising campaign but also ended up being a fantastic piece of advertising for the Jack Daniel’s brand. If the polite letter doesn’t work then the next step is to consider the policies of the relevant social media website, some are good at taking down content, some are not as good and some are awful. Again this is something that should be factored in when determining the social media strategies for protecting brand names i.e. if there is a particular website that causes problems then make that your first port of call when protecting brand names.

If all else fails then you will need to fall back on your trade marks. This is where a proper trade mark strategy comes into play, if you haven’t got adequate protection in place then you will likely struggle to prevent unauthorised use of your marks as user names. It is also important to remember that, as per domain names, user names are first come first served. Whereas in trade mark law numerous parties can own identical trade marks but registered in relation to dissimilar goods/services there is no such division in respect of domain names/user names. There is only one @Very_IP Twitter handle, therefore if Very Inversion Pedometers (I made that up by the way…) wanted that Twitter handle then they couldn’t get it regardless of their trade mark rights (although a large bag of money delivered to my desk would probably do the job….). As mentioned above it is important to be very careful when taking (or threatening) action against a third party, equally however it can be just as damaging to sit back and allow a third party to damage your brand through the hi-jacking of such usernames.

Hopefully this post will have opened your eyes as to some of the potential pitfalls that lie in the way of bleary eyed brand owners stumbling their way around Web 2.0. The basic advice is however nice and simple:

  1. A strategy for registering social media usernames should be in place and should go hand in hand with your domain name and trade mark strategies. By far the easiest and cheapest way of avoiding such an issue is simply to have registered the username yourself in the first place. This is something that should be constantly reviewed to ensure that any new, and relevant, social media sites are covered and that new brands are covered.
  2. If you do come across an infringement, that you have missed at step 1, then keep a level head, ensure all correspondence is nice and polite (remembering at all times that your letter could be tomorrow’s front page) and keeps in mind your brand image at all times.
  3. Litigation is a last resort!

 

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