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The Intellectual Property StrategistKickerSectionsNewsLJN Newsletters

Ten Issues to Consider in Launching a Social Media Presence

By Kyle-Beth Hilfer
May 27, 2010

As companies focus on building their brands through social media outlets like Facebook, Twitter, and YouTube, they are becoming increasingly aware that
content may be proprietary, and intellectual property laws still apply. Due to the viral nature of social media, however, mistakes happen quickly and are often difficult to correct. It is impossible for a brand owner to monitor every social networking site or blog to police online chatter about the brand. Instead, the prudent business will try to initiate and influence the conversation by launching its own social media applications, while paying attention to intellectual property concepts. While the law has not caught up to the technology in this fast-paced area of marketing, certain intellectual property and advertising issues have emerged in the forefront of social media law. This article provides a brief look at 10 of these issues.

1) Trademark Highjacking in social media is a priority concern. The social media sites do little to prevent users from adopting usernames that incorporate third-party trademarks, thus misdirecting traffic and creating confusion in the marketplace. While Twitter threatens suspension of accounts that manifest a clear intent to mislead others and Facebook has a registration process for trademarks and a reporting option for infringement, there is little consistency in enforcement. Will the social media sites police similar trademark usages or trademarks that are not registered with the USPTO? What about foreign registrations? At this point, the trademark owner bears the responsibility of monitoring the marketplace and cannot rely on the social media Web site to do so, particularly because of the safe harbor defense that is available in most instances for social media Web sites.

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