Protecting a Brand in the Age of Twitter, Facebook and Pinterest

Protecting a Brand in the Age of
Twitter Facebook and P
, interest

Kenneth D. Suzan
Barnes & Thornburg LLP
January 8, 2013
Lifetime Athletic Club - Business Round Table

ATLANTA CHICAGO DELAWARE INDIANA LOS ANGELES MICHIGAN MINNEAPOLIS OHIO WASHINGTON, DC

© 2012 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is the property of Barnes & Thornburg LLP which may not be reproduced, disseminated or disclosed without the express written consent of the author or presenter. The information on
this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.

Online Social Networking Defined



Understanding the Tools

• Hot Issue in the Law and in the Public
• Major Legal Issues from Employment,
Defamation, Intellectual Property,
Privacy, Advertising Law, Criminal Law,
and E-commerce



Powerful Networks:
A Snapshot of Social Media Statistics in 2013

Facebook

– Platform hosts 1 billion users
– Half of Facebook users log into their accounts daily
– More than half of Facebook users access Facebook through a mobile
device
– Over 300 million photographs are uploaded to Facebook each day
– Facebook users log an average of 3.2 billion "Likes" and comments on
the network daily
– The "average" user is connected with 130 friends via Facebook
– "If Facebook were a country it would be the world’s 3rd largest and 2
times the size of the U.S. population"
– 61% of Fortune 100 companies maintain a Facebook account (statistic
expected to rise in 2013)



Powerful Networks:

Twitter

– Launched July 2006
– Over 500 million active users
– Over 340 million tweets daily
– 1.6 billion search inquiries logged through Twitter daily
– Ranks within the top 10 of Internet sites visited daily
– Over 460,000 new Twitter accounts opened daily
– 53% of Twitter users recommend products in their tweets
– 77% of Fortune 100 companies maintain Twitter accounts (statistic
expected to rise in 2013)



Powerful Networks:

Pinterest
– Launched in 2010
– More than 20 million registered users
– 3rd largest social network in the United States
– Approximately 80% of Pinterest users are female
– Whole Foods Market has over 81,000 followers
– Average user spends 15.8 minutes pinning and reviewing pins on
Pinterest
– Largest user demographic: 25-34 years old



Twitter: Be Followed

• Help others with problems
• Share photographs
• Share industry news, developments, and trends
• Share links to other content on the Web
• Links to articles by company employees
• Get referrals
• Give referrals
• Ask Questions and Answer Questions




• Research your brand on Twitter – What are the “brand
conversations”
• Respond to tweets that mention your company and your brand
• Reference Twitter account on Corporate Web Site (use electronic
badges)
• Reference Twitter account on advertising and promotional literature
• Tweet at varied times of the day – Twitter is Global




• Feature Twitter at Trade Show Appearances – Live Tweets at Show
• Post discounts, coupons and offers on Twitter – Link back to
corporate Web site
• Employ various types of tweets (Retweet, Replies, Original Content,
and Links to Other Content)



Social Media Strategies:
Best Practices

• Budget Resources and Budget Time
• Investment is in current customers, future customers and becoming
a leader in your field
• Social media should not be ignored – stay ahead of the curve
• Regularly search brand on Facebook, Twitter, and YouTube –
Listen and Communicate with Your Audience



Social Media Strategies:
Best Practices

• Think Social Media for Customer Service
• Monitor Competitor Use of Social Media – What are they doing and
what is their success?
• Social Media is a permanent record that can be searched
• Library of Congress is cataloging Tweets
• Google Saves Tweets – A “Brand Record”



Social Media Strategy:
Best Practices

• Think International – Tweet at various times of day and night
• Use software which enables stored tweets to be sent during the
night
• Engage in “brand conversations” with your customers and potential
customers
• Be sensitive to negative press and publicity on social media
channels



Social Media Strategy:
Best Practices

• Employ Keywords and Hashtags on Twitter (#brand name)
(#company name)
• Establish a schedule for posting new content and material
• Offer discounts, rewards and incentives
• Provide Links to Official Web Site to attract people to additional
content and materials



Avoid Legal Traps

 Unauthorized use of Brand Names as Social Networking Names (e.g.. Mr. Kodak),
Logos, Brands, and Taglines

 Clients need to establish official page and monitor for unauthorized infringing pages
on social networking sites

 Remember to register ITU or Use-Based TM Applications; Before Launching Social
Networking Site Take Careful Review of All Marks



Trademark Issues on Social Media Platforms

• Infringing User Names
• Infringing Sub-domain names
• Infringing Avatars (graphics)
• Postings to Advertise Infringing Merchandise
• Postings to Advertise Counterfeit Merchandise
• Dilution issues — tarnishment and blurring
• Rapid posting and dissemination of cease and desist letters to general
public (potential harm to brand)



Steering Clear of Legal Traps

 Trademarks ® – Likelihood of confusion and Section 43(a) of the
Lanham Act

 “Endorsement, sponsorship, affiliation”

 Monitor Internet for “Brandjacking” – new type of fraud; a/k/a false
profile for a brand



What About Copyright?
1. “Tweets” on Twitter can be
considered copyrightable
expression and subject to
protection
2. Companies need to carefully
watch for copyright violations
and regularly send demand
letters



What About Copyright?
1. Users may infringe copyrights
through their selective copying of
“wallpaper” and other backgrounds
2. Clients should consider filing
copyright applications for
photographs, illustrations, and
other materials before using them
in social networking environments



Who Owns the Copyright in the Posted Materials?
1. Generally, the “author” of the
material owns the copyright and is
entitled to register the matter
2. If companies hire a “social media
blogger”, the work-for-hire doctrine
will likely apply, and the company
will own the “tweets” or “postings”
to particular sites.
3. “Compilations” may also be
applicable



Digital Millennium Copyright Act

• Notice and Takedown procedures of DMCA
• Remember to check for copyright agent via (www.copyright.gov) and
draft a DMCA compliant letter – must be addressed to agent of record,
identify materials infringed, location of materials, good faith belief that
material is not legal, statement under penalty of perjury that attorney is
authorized to act on behalf of copyright owner



Digital Millennium Copyright Act

• Find and Write to the Registered Agent
• See: http://www.copyright.gov/onlinesp/list/a_agents.html



IP Strategies: BE PROACTIVE

• Always consider intent-to-use trademark and service mark
applications
• Consider reserving company trademarks and various permutations
on major online social networking sites - Establish an official
presence
• Post links to the Official Company Web site on sites such as Twitter
– Drive Traffic to Your Web site



IP Strategies: BE PROACTIVE

• Marketing departments need to actively post newsworthy items to the
official Twitter page
• An employee or marketing official should regularly review social
networking sites for inappropriate use of brand
• Companies need to establish and put into place online social
networking policies
• DMCA Compliance – Establish Official Agent of Record with United
States Copyright Office
• Respond efficiently to customer complaints lodged through social
networking sites



Taming the Stream: Keeping Tabs on Growing
Social Media Networks and Infringement Issues

It is critically important to monitor social media networks.
• Brands need to set up monitoring programs
• Internal monitoring vs. Outsourced monitoring
• Consider cost
• Assign employees to monitor major social media networks
• Develop enforcement programs and make sure to follow the
programs
• Keep on top of developing social media platforms for brand
presence and monitoring activities




• Use free search engines to monitor social media for IP
infringement
• Icerocket.com (Excellent for Twitter and blog searches)
• Topsy.com (Excellent for Twitter searches)
• Netvibes.com (Dashboard for monitoring social media
content)
• Technorati.com (Use for blog searches)
• Set up alerts on Google.com/alerts




• Ebeagle.com
• Markmonitor.com
• Thomsonreuters.com ("Web
Watch Service")
• Corsearch.com
• Attensity.com
• Attentio.com
• Cision.com
• Radian6.com
• Sipi-ip.com
• Vaudra.com



Thank You

Kenneth D. Suzan
Minneapolis Office
Follow Me on Twitter at @ksuzan
E-mail: ksuzan@btlaw.com



Protecting a Brand in the Age of Twitter, Facebook and Pinterest

Recommended

Recommended

More Related Content

Viewers also liked

Viewers also liked (14)

Similar to Protecting a Brand in the Age of Twitter, Facebook and Pinterest

Similar to Protecting a Brand in the Age of Twitter, Facebook and Pinterest (20)

Recently uploaded

Recently uploaded (20)

Protecting a Brand in the Age of Twitter, Facebook and Pinterest