Enforcing Trademarks on Social Media

As a trademark owner you have an obligation to “police” your trademark. What does that mean? You are responsible for finding and addressing infringement of your trademark rights. (Copyright holders have a similar obligation.)  A major part of policing or enforcing those rights is monitoring and addressing violations on social media.

Platform Content Removal Policies

Each social media platform has their own policies for removal of content whether trademarks or copyrighted work.  It is important to determine the appropriate method and provide all the necessary information to secure timely removal. Social media content changes very quickly so to be effective at protecting brand perception you must be swift and efficient about requesting content removal.

Use this infographic I created as a quick reference guide for Takedown Policy Requirements On Top Social Media Sites.

What Do I Take Down?

Not only is knowing the policy requirements important you need to determine when a post/content warrants removal. This is a strategic decision your company should make while engaging all necessary stakeholders including but not limited to management, legal and marketing/PR. Below are a few things to consider when determining when to take down a post:

  1. As an organization develop a policy for what types of brand use or content use are important to the company. Use that as a guide to addressing infringement.
  2. Embrace positive uses of your mark. There are positive uses that can promote your brand. Coca Cola illustrates a great example of embracing what could have been trademark infringement when two fans created a Facebook page for them.  Coca cola just dedicated a few members of their team to monitor the content.
  3. Know the social media platform rules and policies on content removal. See the infographic for some help but visit the policies on the platform.
  4. Figure out who is likely to comply with your request for content removal. It is usually easier to make a request through the platform. It can be hard to determine who posted content and their contact information. Additionally, it is unlikely that they will cooperate. Remember that the social media content provider is not likely liable for anything unless you can prove a partnership or joint ownership and control over the account.
  5. Reviews & other commentary about your brand, positive or negative, are allowed. Most social media sites will not take down content of this nature and this can cause backlash that will outweigh the potential benefit. This is a great opportunity to engage consumers and either address concerns or reinforce positive perceptions.
  6. Consider the public relations implications of requesting removal. Will attempting to remove the content cause backlash that will be more detrimental? There have been a number of instances of brands garnering greater negative media attention for trying to take something down justified or not. If infringer’s presence is significant enough to cause concern consider joining the conversation.
  7. Include all the requested information. Incomplete requests for content removal may cause unnecessary delays.
  8. Include trademark registration numbers for all jurisdictions. Some social media platforms will only block content in the applicable jurisdiction or country if you only provide proof of one registration. Provide all registrations so the social media platform is aware of the extent of your protection.
  9. List exactly where infringements are located on the site. Platforms are not required to search for infringements.
  10. Submit evidence of current use. This information only serves to strengthen your claim and is as easy as providing the url to your website.

Remember your objective when policing your mark is to make sure consumers will not be confused. Your trademark is your calling card, do not let anyone use it in a way that dilutes your reputation or capitalizes on the goodwill or value created in that trademark. If you do not have in-house legal counsel consult with an attorney to develop a comprehensive plan to address trademark infringement.

Censorship or Prevention? University Social Media Policies for Athletes

The University of Michigan athletic department has “formalized its social media practices,” following a “national trend of colleges tightening their grip on student athletes’ social media practices,” according to Kellie Woodhouse of ANNARBOR.com.

In the past year, two University of Michigan football players earned their team secondary NCAA violations by inadvertently tweeting at a recruit; a third-string Ohio State quarterback became infamous when he tweeted that classes are “pointless;” and a top-rated recruit lost his chance to play with the Wolverines after he authored sexually and racially charged tweets.

The Univ. of Michigan policy is straightforward, advising students not to post when they’re emotional, not to use offensive language or slurs and not to tweet during class. If athletes violate the policy they can be reprimanded or, worse, face suspension.

Some colleges go much further than Michigan, forcing athletes to allow school officials access to their private accounts, banning players from using a long list of words on Twitter (such as University of Kentucky), or forbidding the students from using Twitter altogether. Many schools have hired third-party companies to monitor athletes’ posts around the clock.

Read the current agreement: University of Michigan social media agreement for athletes.pdf

Read the guidelines: University of Michigan social media guidelines for athletes.pdf

Are universities crossing the line?

These actions being taken by universities have already begun to see kick back by state legislatures such as California and Delaware. Social media is a new forum for speech that everyone is struggling to understand how to control. Everyone seeking to limit the reach and use of social media need to remember that social media is an avenue for protected speech. Users must also remember they will be held accountable for their actions and opinions. It seems universities have taken it upon themselves to protect their investment and make sure that athletes are aware of the power of their words.

So the question is, “Is it proper for universities to limit the speech of athletes by putting parameters on their social media use?”

This is an over-excerise of authority and I think universities will continue to see increasing backlash for these kinds of activities. Athletes voicing their opinions via social media is protected speech under the first amendment and should be protected accordingly. Therefore, athletes should have the right to voice opinions as they see fit but they need to be prepared to deal with the consequences that follow. I do think its a concern that athletes and students alike are posting recklessly. However, universities should invest their resources into training athletes about appropriate social media use as opposed to instituting rigid policies.

Although universities are not bound by the National Labor Relations Act as it relates to their athletes they should use the National Labor Relations Board‘s guidelines and rulings as guidance when adopting a social media policy.

A Lesson for Students

Students should take a lesson from these policies. Your social media use matters and can be the difference between success and failure. Not only is it important to athletes who find themselves in the public eye but to the job or internship-seeker who will be throughly searched online. Although you should retain the right to post whatever you want, make sure you are careful with what you post and the privacy settings you use. Your online reputation always proceeds you make sure you put your best foot forward.

NLRB Issues First Social Media Decision – What Does this Mean?

Social Media is a new frontier in cyber law.  It is impacted by a variety of regulations such as labor laws, internet law, IP law, etc. Recently the intersection between labor law and social media has impacted corporate policy. Many companies dove head first into the social media craze when they realized the potential marketing impact. Many realizing much later that they needed to regulate use by employees and some not realizing at all. Many of the social media policies created violated employment law namely the National Labor Relations Act (“NLRA”).

Over the last year the National Labor Relation Board (“NLRB”) Acting General Counsel issued a series of memos that provided insight into its interpretation of how the NLRA applies to social media policies. This month was noteworthy as the National Labor Relations Board issued its first decision taking on an employer’s social media policy in Costco Wholesale Corp., 358 NLRB No. 106 (2012).  The ruling was pretty consistent with the recommendations for the NLRB memos which highlighted a need for specificity and examples.

Costco’s “Electronic Communications and Technology Policy” stated:

Costco recognizes the benefits associated with electronic communications for business use. All employees are responsible for communicating with appropriate business decorum whether by means of e-mail, the Internet, hard-copy in conversation, or using other technology or electronic means. Misuse or excessive personal use of Costco technology or electronic communications is a violation of Company policy for which you may be disciplined up to and including termination of employment. Your use of Costco technology and electronic communication systems represents your agreement with the following policies: . . .

  • Any communication transmitted, stored or displayed electronically must comply with the policies outlined in the Costco Employee Agreement. Employees should be aware that statements posted electronically (such as online message boards or discussion groups) that damage the Company, defame any individual or damage any person’s reputation, or violate the policies outlined in the Costco Employee Agreement, may be subject to discipline, up to and including termination of employment.

The NLRB found that employees would reasonably construe the rule as prohibiting Section 7 activity. More specifically, the NLRB found the “broad” prohibitions against damage to the Company or another individual’s reputation included communications by employees that protest how the employer treated its employees.  The NLRB also found the rule requiring employees to use “appropriate business decorum” was lawful under the NLRA, which is good news for employers.

Employers following this opinion should note it affirms that context and specificity play an important role in whether a policy is considered lawful under the NLRA.  Policy’s are evaluated as a whole so employers must be aware of how each section works together. I encourage Employers to pay close attention to NLRB recommendations and all relevant state & federal regulations as you craft your social media policy.