Social media has become an integral part of marketing strategy for consumer products, with many phrases, straplines and brands being devised specifically for targeted campaigns using media such as Facebook and Twitter.
But in a highly competitive world how does a brand owner protect the effort put into such campaign branding?
In fact social media is simply another medium through which companies can advertise their product offering, in much the same way as in the past “doing business online” was new and exciting; but this still sits alongside traditional advertising media such as radio and TV advertising, paper advertising and word of mouth.
Many advertising campaigns, whether on or offline, are short lived, so the value of putting in time and effort into the registration process is likely to be entirely obliterated by the short life of the campaign. But some campaigns take on a life of their own and really begin to develop an identity with an ever-increasing following, and as this happens, the association of the campaign with the brand owner grows, as does the value of the branding and get up used in the campaign. The desire to maintain exclusivity and control grows, and the brand owner needs to start considering the options available for protection.
Wyke Farms have recently announced that they have obtained a UK trade mark registration for “Free Cheese Friday”, which they have headlined as the first trade mark for a social media campaign. In fact it is likely that many brands used in social media campaigns are the subject of trade mark registrations, but most likely as they are part of a company’s core branding activity rather than something which is a brand purely devised, and successfully employed, for a social media campaign.
In the case of “Free Cheese Friday” this was devised for a Facebook campaign, also used as a Twitter hashtag, and took on a life of its own developing a cult following. Such was the recognition with the Wyke brand that they decided to seek trade mark registration so that they had the tools to control and protect their investment and consumer following.
So, if a brand owner devises branding and get up purely for a social media campaign, should they also automatically consider trade mark registration?
There are perhaps three separate issues to consider.
Of course the primary issue, whether for a traditional or social media campaign, is actually the question of whether or not there are rights already in existence that can impact on the ability to use the chosen branding – just because use is going to be in the medium of social media this does not change the risk of infringement – in fact it means that it is even more likely that an infringement will be noticed as social media campaigns will feature in internet searches – and competitors will of course also be monitoring social media for exactly the same reason.
The next hurdle is then the question of whether or not protection, through the form of trade mark registration, is realistic. It is not possible to simply register anything and everything, and there are some critical hurdles that need to be overcome, that could be very relevant to elements of social media campaigns, such as Twitter hashtags.
- Is the branding distinctive? Will consumers realise that the elements involved are supposed to distinguish the brand owners offering from those of its competitors? If the answer is no, then registration may not be possible.
- Is the branding descriptive or laudatory in some way? Will consumers think it is merely a description of some element of the product or the offer being made, or that it is mere advertising puff? Would it be fair for other businesses in the same sector to be barred from using genuine descriptors for their products? Of course not.
- Is the branding simply a generic term? For example #soap for soap simply cannot be protected. Other soap manufacturers need to know they can create discussions or campaigns around the use of the generic term without fear of being sued for infringement.
- Is the branding being used in respect of specific products or services? Ultimately, a trade mark is registered in relation to the specific goods or services for which it is being used, or used in relation to. If this is not clear then registration will either fail, or will not remain valid.
Since trade marks can be used to protect many aspects of get up and branding, the scope for potential registration is fairly broad, and so a brand owner should carefully consider the different visual aspects of any social media campaign to determine what elements may be protectable
This can include the more traditional names (including potentially Twitter hashtags) and logos used as part of campaigns, through to movements and sounds – although these more unusual forms of trade mark are far harder to register, and generally the authorities (the UK Intellectual Property Office for the UK) will need some convincing – generally through extensive evidence of use and recognition by consumers.
The next issue for the careful brand owner is, if they obtain a registration, how they monitor the use being made to ensure that the registration remains valid. Many social media campaigns by their very nature encourage sharing and discussion using the elements of the campaign, the Twitter hashtag being particularly relevant here.
This is entirely contrary to the usual rules of trade mark ownership, where use should be by the registered owner, or under the control of the registered owner. By encouraging third parties to use, for example, a Twitter hashtag, how does the brand owner exercise control? The one advantage of social media in this regard is that a brand owner engaging in careful monitoring of different social media avenues, and having a specific policy in place, should be able to monitor for appropriate and inappropriate use. This can include where derogatory comments are posted using the social media branding, as clearly this can seriously impact on the integrity and value of the brand and trade mark registration.
A policy of careful monitoring at least ensures that a proactive brand owner can quickly respond to any inappropriate use. However, the ease of use and accessibility of this medium to all makes this a constant challenge for brand owners.
The Internet and social media continue to present an ever-changing brand landscape, with constant new challenges for the brand owner. However, in many instances, it is simply a case of applying basic principles to the situation.