What (or Who) is in a Name?

With the increase of social media use has come a society demanding and capable of attaining information instantaneously.  We all recognize that social media is no longer purely a way to connect with friends and family.  It has entered the world of business and consumer relations both to its detriment and its aid.  After forming a business entity, a wise business person will take the initiative and command control of their social media presence, while others will find themselves in the unenviable position of doing extensive, not to mention often expensive, damage control.  At The Creekmore Law Firm PC, we help our clients determine strategies for anticipating and curbing existing damage to your company’s intellectual property, especially your company’s trademarks, the intellectual property most closely associated with identifying your business.

A trademark is a word, symbol, or phrase used to identify a particular manufacturer or seller’s product to distinguish it from the product of another.  This can include things like rights to the word mark “Coca-Cola,”  as well as the words and design mark for the famous white script “Coca-Cola” on a red background.  Trademark protection is recognized at common law, as well, where the owner of the mark can claim protection, but only in the geographical area in which they can demonstrate they actually use the mark  in commerce.  If you, as an owner, only sell your goods or services in Virginia, for example, the geographical area in which you could claim protection will be limited to Virginia.  If another entity or person registers a similar mark at the federal level, that person or entity will have rights to use of the mark nationwide, except for in Virginia if you can prove your actual use was first.

Of course we’ve all heard the phrase “the customer is always right.”  The same is true, generally speaking, in the legal world of trademarks.  The law provides for trademark protection in an effort to create and protect consumer expectations and prevent consumer confusion. Trademarks are meant to function as “source identifiers” making it easier for consumers to quickly identify the source of a given good or service.  This, in turn, gives them the right to have a certain expectation, based on the good will and reputation the source company has built up around that good or service.  The purpose of this is to incentivize healthy competition in the marketplace and provide an internal level of quality control, again, to protect consumer expectations.  Because trademarks are source identifiers, the law requires that the marks be “distinctive,” meaning they be something more than generic or purely descriptive in nature.  Name brands like “Kodak,” for example, are far more distinctive, and therefore worthy of trademark protection, than a brand called “Shredded Wheat” which is not afforded trademark protection as it simply describes the product itself.

The world of social media can compromise trademarks.  Both large and small companies can be affected by online activities that injure a mark’s reputation, strength, and goodwill with consumers.  Given the instantaneous nature of social networking platforms, truly harmful information can be spread in mere seconds.  This can include improper suggestions of affiliations or a sponsorship involving a company’s products or services, or someone entirely ripping off a logo to intentionally misdirect customers looking for specific goods or services.  Such improper associations or misdirection can easily confuse consumers and affect the consuming public’s perception of the quality of a product or service.  This can result in devaluation of a brand or the goodwill a company has worked hard, and has expended valuable resources, to build.  As a trademark owner, you must always be aware of competitors and infringers to police such actions, as they can undermine your ability to protect your mark.

As a specific example, “brandjacking” occurs when a social media user, often someone not at all professionally affiliated with the company, registers a Twitter account, Facebook page, or the like with a name that is indistinguishable from the real mark to the common user.  This impersonation or imposter site is especially confusing to consumers who will likely be tricked into believing this is an official source.   Typically, courts only find trademark infringement if the third party is understood as advertising or selling goods or services in commerce; however, if it can be demonstrated that the alleged infringer is using the mark to actually impersonate the markholder and confuse consumers who encounter the source as to the source (leading them to believe it is official in nature), courts may be more likely to find actual trademark infringement.   Courts will often adopt the standard of the “least sophisticated” buyer when determining the consumer class and confusion, especially when there is a likelihood of a mixed consumer class attracting both casual and professional consumers.  If a trademark owner is able to show that consumers are actually confused about the source of information on the social media site, that is the best evidence of actual infringement of trademark rights.

Obviously, this is only one example of how your mark can be compromised in the world of social media.  The Creekmore Law Firm PC has helped clients in Roanoke, the New River Valley and throughout the Commonwealth of Virginia to shore up their intellectual property rights.  Whatever your needs may  be, we can help you avoid trademark infringement and prevent the improper use of your mark, while building a framework in place that allows you to take quick action and regain control.