Social media has become one of the main forms of promotion and advertising for small businesses throughout the world.
But few owners pause to consider the legal ramifications of posting online without first understanding the importance of trademark protection and the possibility of infringement of their business names, logos, and slogans.
Understanding Trademark Protection in Social Media
Today, social media users can post pictures, logos, and comments almost instantly after creating them.
This leads to a form of real-time advertising by business owners or third parties that may result in various infringements and violations, including those of trademark rights.
Similarly, displaying a business online without first protecting the brand may unintentionally expose a business owner’s mark to being copied.
Further, in the United States, trademark common law rules allow for ownership claims over a mark based on its use rather than actual registration.
Therefore, it is important that every small business owner understands the importance of brand protection regardless of the size of their business.
In fact, even an accusation of infringement can be detrimental and even fatal to the life of a small business with limited resources.
So, having a properly registered trademark and knowing the intricacies of brand protection on social media can be thought of as a form of insurance for a business’s brand.
To help small businesses get started with protecting their marks, the following is a list of important considerations for small business owners on how to navigate the social media and brand protection maze:
1. Hire an attorney to assist you with a comprehensive trademark search and determining whether your mark qualifies for a federal trademark registration!
Despite common misconceptions, trademark registration and brand protection efforts are not an ideal DIY side project!
Having a qualified attorney to assist you can mean the difference between having the security and confidence of knowing your business’s brand is being fully protected and constantly defending against or warding off infringement attempts and accusations.
Regardless of whether you intend to keep your business as an “empire of one” or grow it to a multi-national business with several locations, social media exposes your business and brand to those far beyond the boundaries of your physical location.
This extended reach extends the possibility of infringement against your brand to anyone also using the same social media platforms.
Since receiving a federal trademark registration for your business’s brand ensures that you have the sole rights to use a particular name, logo, or slogan within your specific industry, you will be able to properly defend against anyone claiming that they have rights to or used the same or similar mark first.
Ideally, it is best to select a name or mark to represent your business’s brand AFTER having conducted a comprehensive search and analysis.
Such search goes beyond the United States Patent and Trademark Office’s (USPTO) website or plugging in your proposed name into Google.
Not only will your trademark attorney be able to conduct a comprehensive search using highly specialized tools, they also know what to look for when analyzing the results and drafting their opinion letter as to the likelihood of success of your business’s trademark application.
2. Register your Social Media handles across all platforms even if you do not intend to immediately use it!
After thoroughly searching your business’s mark and ascertaining that it has an acceptable likelihood of approval by the USPTO, it is important to file your trademark application as soon as possible to avoid others filing an application for a similar mark ahead of yours.
It is at this point that registering for or claiming social media handles would be most appropriate.
Regardless of whether you intend to actively use the various social media platforms, such as Facebook, Instagram, Twitter, TikTok, and Pinterest, reserving your business’s mark or name allows you to notify the public that those marks are already in use.
Further, it helps to avoid customer confusion regarding your brand, as well as, incorrect and unintended harm to your brand’s reputation due to confusion with other companies.
3. Monitor for infringement against your business’s brand and be prepared to take action against infringers!
Monitoring for infringement against your business’s name and marks is imperative to keeping your trademark active and maintaining your exclusive rights to those marks. While infringement may be accidental or intentional, it is important that they are addressed immediately upon being discovered.
All major social media platforms have policies to handle instances of infringement.
However, given these platforms’ rigid rules and regulations, an attorney would be best equipped to help with reporting and requesting that any such pages are removed.
Typically, your trademark attorney would counsel you to inform the particular social media site in accordance with their required process.
Each major platform has online infringement notification forms that will permit you to report such incidences and establish proof of your trademark (such as presenting your trademark registration number).
While not every mark qualifies for federal trademark registration, it is imperative to know your trademark rights and boundaries prior to utilizing your mark on social media.
The mix of advertising outside the parameters of your immediate geographic location, the myriad of social media platforms, as well as, the intricacies of trademark law (both statutory and common law), results in complex legal issues that should be tackled with the assistance of your trademark attorney.
To learn more about how we can assist you with registering your trademark with the USPTO, contact us to schedule a consultation call.
Welcome to ASR
Welcome to ASR Law Firm! If you’re seeking a welcoming, friendly, and proactive team to help you with your transactional legal matter, I would be honored to speak with you. Let’s schedule a virtual consultation today!