Social Media Trademark Infringement

Today, I will be talking about many issues that my law firm Traverse Legal, PLC often hears about as it relates to social media trademark infringement. And just so we’re all speaking the same language, when I’m talking about social media, I’m obviously talking about sites such as Facebook, Twitter, LinkedIn, Pinterest and many of the others that are popping up on what seems to be a daily basis.  And we are getting existing clients and prospective clients that continuously contact us and ask what is social media trademark infringement? 

Welcome to Trademark Law Radio, a top web resource on issues of trademark infringement, trademark licensing, trademark protection, and trademark registration. 

This is Internet Attorney and Trademark Attorney Brain Hall.  Today, I will be talking about many issues that my law firm Traverse Legal, PLC often hears about as it relates to social media trademark infringement.

And just so we’re all speaking the same language, when I’m talking about social media, I’m obviously talking about sites such as Facebook, Twitter, LinkedIn, Pinterest and many of the others that are popping up on what seems to be a daily basis.  And we are getting existing clients and prospective clients that continuously contact us and ask what is social media trademark infringement?

And my answer is always the same.  It’s no different than any other kind of trademark infringement, it just happens to be on the internet and, in particular, on a social media website available on the internet.  In order to show trademark infringement on Twitter or Facebook or Pinterest or any of the other social media sites, you still have to establish all of the same elements that you would have to in a traditional trademark infringement lawsuit.  And a Lanham Act trademark infringement lawsuit requires that you are the owner of a distinctive trademark and that the other person’s use or other entity’s use of your trademark creates a likelihood of consumer confusion.  And, once again, you go through the standard likelihood of confusion factors, with the most important being the similarity of the marks, and the similarity of the goods and services.  What makes social media trademark infringement particularly interesting is that oftentimes it is an attempt by someone else to do what’s been regularly referred to as brandjacking or impersonating a different entity in order to attract followers or additional attention to a particular social media account. 

So, once again, at the end of the day, social media trademark infringement is not that much different than trademark infringement as it relates to the elements.  But where it is different is as it relates to how to determine who the entity is behind the particular social media account, or, how they’re using your particular mark in an effort to either divert traffic or customers or confuse them into believing they’re affiliated or sponsored by or endorsed by you, so as to either gain additional followers or, more likely, to gain something else, be it passwords from individuals or sometimes money. 

So, regardless of the exact conduct that’s occurring, if someone else is using your mark, be it a trademark or service mark, and regardless if it’s registered with the United States Patent and Trademark Office, or merely a common law trademark, if someone’s using that without your permission, and it’s creating a likelihood of consumer confusion on Twitter, Facebook or YouTube or any of these other social media sites, you should contact an internet lawyer and a trademark attorney who can help you address what your next steps are.    In all actuality, some of the social media sites have mechanisms through which you can deal with these issues without having to file a lawsuit.  However, other instances require that you may have to identify the person behind the infringement and file a lawsuit in federal court.  But, once again, an internet  lawyer with experience in social media issues can assist you with all of these types of items. 

So, once again, this has been Brian Hall from Traverse Legal, PLC. 

You have been listening to Trademark Law Radio.  Whether you are facing a trademark infringement, licensing, monitoring or trademark registration issue, we have a trademark attorney ready to answer your questions.  

Comments

[brooklyn old smokey man]

Citing the factual nature of trademark infringement claims, the Ninth Circuit vacated the order. It’s a pretty fact-specific decision, but the court concluded that genuine issues of material fact existed with respect to both “use in commerce” and likelihood of confusion. Therefore, it found the district court’s dismissal on summary judgment was a mistake.