Brand protection on social media: Listen to your consumers, or to your lawyer?

Brand Protection on SocialMediaListen to your consumers, or to your lawyer?Prof. Cédric ManaraLegalEDHEC Research Center<www.cedricmanara.com/english>Summary of a study co-authored with Prof. C. Roquilly 2

2001 3

2011• Fired after a negative tweet 4

Time spent online  Complaint costs  5

Complaint costs  [Gripe example]• The Gripe app lets consumers post complaints about a business and warns businesses of each complainers social media influence. 6

Monitoring costs [KeepAlert examples] 7

Example 1 - Starbucks• June 2011: 2,500+ „starbucks‟ domain names, including 8

Example 2 – Dr. Martens• June 2011: 350+ mentions, including 10

Example 3 - Cadbury• June 2011: 300+ mentions, including: 12

Starting point• It has become easy to be aware of (possible) trademark infringement / brand image tarnishment• Should each case be followed by legal action? – Costs – Legal duty 14

Research question• Brand protection online: Is there a good recipe (if any)?• Empirical studies of: – Social media terms of use [1] – Cease & desist letters [2] – Caselaw [3] 15

1. Social media ToS• To which extent are brand owners granted protection on social media?• Sample of 10 – BG, FB, LI, MS, SL, SK, TW, WI, WoW, YT 16

Notify… and grab• youtube.com/apple – 21 mars 2009 : "squat"• Today: 17

Diverging platform policies [1] 18

Diverging platform policies [2] 19

On the recipient‟s side• Twitter (says it) – gets 10,000 complaints a month – has 24 people dealing with user complaints• Facebook – ~30 lawyers, mainly focusing on patents 21

Social media  Leverage effect• For brand protection• For consequences of action 22

« Spill over » effect• Canadian telecom company NorthwesTel issued a takedown notice to Facebook over the logo this group was using to criticize it 23

• "... Linda Hillier March 7 at 8:56pm• Hi George, I had to take your photo down because I received this notice: "We have removed or disabled access to the following content that you have posted on Facebook because we received a notice from a third party that the content infringes or otherwise violates their rights: [Main page image:"Northwestel abuses yukoners, and exploits its monopoly"] We strongly encourage you to review the content you have posted to Facebook to make sure that you have not posted any other infringing content, as it is our policy to terminate the accounts of repeat infringers when appropriate. If you believe that we have made a mistake in removing this content, then please visit http://www.facebook.com/help/?page=1108 for more information." This is the info from the page it leads to: "We have removed or disabled access to content that you posted to Facebook because we received a notice from a third party that it infringes or otherwise violates their rights. If you believe that we have made a mistake in removing this content, you are not obligated to respond, but if you wish to follow up, you can contact us at ip@facebook.com. If we have also disabled your Facebook account, possible reasons include, but are not restricted to: • Repeated infringing behavior after receiving one or more warnings from Facebook • Alleged trademark infringement • Impersonation of an entity • Misrepresentation of identity - Facebook profiles are meant to represent a single individual. Groups, clubs, businesses and other types of organizations are not permitted to maintain an account. For more information, please visit our Intellectual Property Help Center page." I had to acknowledge the notice in order to proceed. I am not willing to put my Facebook account on the line for this photo, but you mentioned that you would be willing to fight with them. Please feel free all of the information is above, including an email address you can forward your complaint to. Thanks! Linda..." 25

Proposal for a Council Framework Decisionamending Framework Decision 2002/475/JHA on combating terrorism - Impact Assessment {COM(2007) 650 final}• “when a website is successfully removed from a host server, it reappears very easily under another name” 26

"Streisand effect"• Online phenomenon in which an attempt to hide or remove a piece of information has the consequence of publicizing the information more widely 27

2. Cease & desist letters• 394 over TM (December 2010) 28

What happened after these C&D were sent?• Effect in 90% of the cases – 10% remain• (100 % republished on ChillingEffects)• 99.2 % republished elsewhere 29

Unicorn 30

3. Cases• ~200 cases studied – 25 relevant• Success of brand owners in 33% of the cases – Removal of the disputed content 31

4. What we learn• Limited efficiency of legal action 32

Noise• Complaining customers who use social media receive disproportionate attention• One always hear angry people first 33

Regulation v. Feed• Information flow – continuous / real time • mood, updates, etc. – voluminous • Passive consumption• Legal (re)action contributes to the information flow Verba volent, scripta manent scripta volent (?) 34

Inaction may be a strategy 35

Questions before action• Should one interfere in private space or conversations?• Should one sue its own clients?• What is the influence of the target?• …• Do social media get us paranoid? 36

Legal response…• Legal duty to « maintain » trademarks• Boomerang effect of this duty 37

… or communication response?• "The answer to the machine is in the machine" [C. Clark, 1996]  The answer to the use of a third machine is in your use of the machine (?)• Hidden advertising is prohibited – Example: OFT 38

Thank you 40

Brand protection on social media: Listen to your consumers, or to your lawyer?

by Cedric Manara

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Brand protection on social media: Listen to your consumers, or to your lawyer? Presentation Transcript