Social media. For some the parasitic mental decay of future generations, for many an integral part of everyday life—for businesses and influencers a whole new realm of possibilities.
Users of platforms such as Instagram are constantly increasing. In January 2013 Instagram had an average of 90 million active users per month; in 2020 this number passed 1 billion—a seventh of the world’s population. It is estimated that Instagram advertising alone has a potential reach of more than 900 million people and nearly 40 percent of users have already between 1,000 and 10,000 followers.
And Instagram is just one of many: Snapchat, Twitter, TikTok and many more are continuously growing their user bases and are used every day by millions of people.
However, with each new platform arise new dangers. Fake profiles (operated by bots) are added to these platforms on a daily basis, with estimates stating that every tenth account on Instagram is a fake. Phishing and ransomware are being propagated through messages on each of these platforms and hacked profiles appear to be a regular threat.
A less discussed issue—but equally vital for a business—is the infringement of IP rights on social media. It has never been so easy to infringe third party IP rights. One wrong post, one misused Hashtag or one thoughtless story can result in costly legal proceedings, an expensive rebranding, or corporate ruin.
Ariana Grande for example filed a suit for 10 millions dollars against Forever 21 for their alleged unauthorised used of Ariana’s name, image, likeness, and music. Influencer Chiara Ferragni’s disputed against CKL Holdings NV regarding trademarks „chiara“ and „Chiara Ferragni“, resulting first in a loss of rights and ultimately in a win for Ferragni.
Being aware of the value of your own IP rights and the risk of treading on others’ is hence vital, especially if you are using social media for commercial ends. I’ve prepared 5 points on how to use your own IP rights and 5 points on how to avoid running foul of other people’s IP rights:
Your own IP rights:
1– Protect your brand, your logo, your slogan and eventually even your hashtag by filing a trademark application.
Trademarks (or brands) are easy to register, allowing you to so secure exclusive rights in the use of your mark with one or more ‘classes’ of goods or services—. Nowadays hashtags can also be protected by trademark registration (e.g. #smilewithacoke), while photos, videos, articles and artwork are protected under copyright law.
You can file your own trademark application: you are not required to use an IP professional. But be careful: a small mistake might result in increased litigation costs, invalidate the resulting registration or the loss of your brand!
Every start requires a first investment – do your work properly now and save money later!
2- Mark your IP.
Let the public know that your brand name is protected by a trademark registration and that your products are protected by design registration and/or patents. This puts potential copycats on notice, will deter many from infringing, and supports the value and exclusivity of your brand and/or product.
Show the world what you’ve got – Social Media is also there for that!
3– Monitor your IP rights.
Keep an eye out for anyone (ab)using your IP rights—how your brands, designs and inventions are being used, and when possible, infringement occurs—and collect evidence! It is easier to scare off infringers, or litigate, if necessary, if the evidence of their conduct is clear and reproducible.
Check competitors’ stories, follow similar profiles – you’ll be to monitor your IP rights and see what the competition is up to!
4- Be lenient with “infringers”
Not all infringe is bad infringe – some is free publicity.
Also, on social media, it is difficult to fix a bad reputation and it is better not to earn one – so be firm but lenient: do not attack every minor infringement and don’t become known for being an aggressive rights enforcer.
Often out of court settlements are a win-win , avoiding lengthy and costly court proceedings and potential damage to your brand.
Be careful: the internet never forgets!
5- License your IP rights.
A license is an agreement between two or more parties, in which the owner of IP rights gives permission to another person (the licensee) to use his or her trademark, designs, etc.—generally for a fee. The fee may be a one-time payment, regular payments, or a percentage of the licensee’s profit (known as a ‘royalty’): it is just a matter of negotiation.
The license should be drafted by an IP professional (such as a lawyer specializing in IP), as otherwise it may not achieve what you want—or even be unenforceable.
Spread your licenses around the globe – let people use and publicize your product for you!
Using others IP rights.
6 – Always check for existing IP/trademark rights
A quick search on databases such as https://www.tmdn.org/tmview/#/tmview for trademarks and https://www.tmdn.org/tmdsview-web/#/dsview for designs can save a lot of future trouble. These databases are user-friendly and easy to navigate, and a good starting point to see whether your future brand name is already protected by others as even using a hashtag of a protected Trademark might result in an infringement.
Always check before starting your brand or before posting third party content.
7- Ask permission
Obtain written permission from any third-party brand or IP owner, if the name, logo and/or product will be featured in your content. Especially on Instagram, using other people’s brands or names can result in free publicity for them, so they might agree to its use without demanding a fee.
Write to them directly on Instagram or find contact information on their contact details.
8. Get a License.
If the owner does not give you permission for free, you may have to consider requesting a license—especially where you want to use someone else’s rights for your own publicity. A license can be negotiated directly, but it is highly recommended to have an IP lawyer draft the agreement.
Cross-licensing with third parties can be a perfect way to push both!
9. Don’t freak out when you receive a cease-and-desist letter
There can be many reasons to be issued a cease-and-desist letter, but not all are justified – some are even fake. Do not freak out and do not immediately sign anything. Sending an unjustified cease-and-desist letter (perhaps based on the flimsiest mere pretext or without real evidence of infringement) is a common intimidation technique. Do not fall for it. Instead, immediately ask your IP lawyer to assess the letter’s merit.
Don’t rant on social media – it is useless and might complicate litigation!
10. You can’t prevent errors
Especially at the start, when building up your brand, you’ll make many errors, and it will be a constant learning process. Do your homework and try to avoid the preventable mistakes.
Get your strategy ready, build up a trustworthy team and talk to experts! You’ll certainly still make mistakes, but your ride should be less bumpy.
“A person who never made a mistake never tried anything new” – Albert Einstein
Bonus point – Identify with the other party
This is probably one point that is seldom taught, but which is important when negotiating: identify and empathize with the other party.
Don’t start any negotiation or other interactions with the view that the other party is the enemy –such interactions are likely to end worse than necessary.
Everybody is trying to promote their products, and many are in the same situation as you – treat them as you would like to be treated!
There are many points which need to be considered when building up a brand and/or developing a new product. There are even more points to be considered when using social media platforms such as Instagram. Get as much information as possible on what you can or cannot do and consult professionals when in doubt.
In case of doubts or if requiring advice on building up your brand, feel free to contact me here on Linkedin or directly at Fleuchaus&Gallo.