Social networks: advertising opportunity or trademark infringement?

Authors: Erikas Saukalas, METIDA partner, attorney-at-law, Head of the International Relations Division, court mediator; Laurynas Jurgaitis, METIDA lawyer

shutterstock_169451720Social networks offer endless opportunities for communication with clients. Thus, it is inevitable that many entrepreneurs set up official accounts on Facebook, Instagram or YouTube. However, it should be pointed out that social networks are also the feeding ground for trademark thieves. In practice, we can come across the following situations:

  • an unauthorised person uses trademarks and other commercial attributes on his or her own social network account for advertising purposes;
  • a competitor uses a confusingly similar trademark on his or her own account;
  • a social network user creates an account with an incorporated trademark he or she does not own.

It might be difficult to defend the rights of a trademark owner, particularly in situations where the identity of the infringer is unknown. But the good news is that the terms and policies of the majority of the existing social networks forbid intellectual property violations and have implemented measures to combat this issue.

They offer a procedure that can help anyone interested to protect their trademark rights against infringements by reporting violations to the social network administration, using a featured network function. A trademark owner will be asked to provide registration data on the respective trademark, copies of a registration certificate and a statement describing the manner in which his or her right have been violated. The statement must specify the circumstances which would evidently show the unlawful attempts or intentions of the infringer to use the social network account for commercial purposes, i.e. for advertising of specific goods or products. Such circumstances could be cases of actual confusion of network users in the comment section or misleading hashtags.

However, the use of a trademark will not be considered to be illegal if a network user advertising this trademark is not seeking commercial profit. In addition, in certain cases the use of a trademark could be even justified, when, for example, trying to indicate the purpose of use of accessories or spare parts of the products.

Mind that the described procedure for reporting intellectual property violations must be used with due caution. In the event of identified cases of trademark rights infringements, it is recommended to first address the wrongdoer directly, asking to suspend the unlawful use. Keeping in mind the public nature of social networks, instant spread of information and situations known in practice where an imposing or rather casual tone of complaint provokes a negative reaction, it is important to ensure that the request is made clearly and with due respect. If the infringer does not respond, you must contact the social network administration.

Protection of rights of a trademark owner in a social network environment might seem complicated at first, however early registration of a social network account, vigilance in respect of infringers and a prompt reporting procedure for intellectual property rights infringements could make this task much easier.


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