Trade Mark Strategies for Social Media Campaigns.
With social media now an integral part of everyday life, it has fast become a vital part of any marketing strategy, with many phrases, straplines and brands being devised specifically for targeted marketing campaigns using media such as Facebook and Twitter.
If brand owners are spending time and money developing unique marketing, advertising and get up for social media, should they be seeking to protect their investment? Does trade mark registration impact on how they devise their marketing strategies at the outset? And does this impose any restrictions on how they and others use these assets?
Despite being a relatively new medium, the issues and rules regarding social media are no different when looking at what can and should be protected through trade mark registration and should be incorporated into existing brand protection strategies.
Intellectual Property Offices are likely to continue applying the standard registration criteria when considering whether or not to grant protection. The US Patent and Trademark Office has, for example, already issued guidance to its examiners reminding them that the existence of a hashtag in an application should not change the approach they take to deciding if a trade mark meets the relevant criteria for registration.
Brand owners should be cautious when considering the details of a social media campaign. If the registered trade mark rights for the same thing or something confusingly similar are already owned, it is potentially an infringement. Brand owners should run risk assessments of the trade mark position on the Register of the country of interest to their marketing campaign.
For brand owners undertaking a one-off or very short-lived campaign, there may be little merit in the registration process but it is still important to consider the risk assessment angle. Even a one-off use could be an infringement.
Where there is a longer-term strategy however, registration is advisable. With a greater investment being made in the campaign, the impact of a successful campaign being hijacked or piggybacked by a competitor could be significant. It must also be noted that when adopting new brands that the relevant avatars, user names or hashtags have already been used up.
Fortunately, trademark registration is an intellectual property right that can be sought after launch, allowing brand owners to take a strategic view and change their protection strategy as business develops. The caveat here is that someone else may register first.
How then to maintain validity? The very nature of social media is to share items among third parties, thereby removing control of the trademark from the registered proprietor. It will become increasingly important for businesses who register, in particular Twitter hashtags as trademarks, to monitor their use and ensure it does not denigrate the brand and that there is no mis-use by competitors, both of which would require prompt action.
Awareness of brand protection and use issues at the outset should enable businesses to develop effective approaches to brand selection for social media campaigns, protection strategies and monitoring/ enforcement strategies. However, the ease and accessibility of this medium, and its rapid, ever-changing nature, means it will present a constant challenge for even the most forward-thinking and proactive brand owners.