It can happen in an instant. A cyber squatter can lay claim to your brand name, robbing you of the equity you've spent years and resources developing. This can create consumer confusion and even put your trademark at risk.
While social media such as Twitter, Facebook, and YouTube enable brands to communicate in new and exciting ways with huge audiences, they also present challenges for companies seeking to actively protect their marks.
The sheer expanse of the internet makes it difficult for companies to identify, much less go after, every cyber squatter, yet that is exactly what is required in this age when a website is just the very beginning of a web presence.
For example, Twitter recently faced criticism for its attempts to assert trademark rights in the word "tweet." While the company's enforcement efforts may appear heavy-handed, many businesses believe that stopping unauthorized mark usage is critical to brand preservation.
Most recently, Facebook began allowing companies and individuals to register unique URLs, such as facebook.com/DASANIessence. While some brands were quick to seize this opportunity to further engage with some of Facebook's 200 million active users, others were slow and found their trademarked names already taken. If you find yourself in this situation, here are a few immediate things to do.
1. Register anyway. Even though the URL registration deadline is passed, apply for the house or dominant brand extension on your company Facebook site. If you don't have a Facebook account, open one and try to register.
2. Evaluate the options. In some cases, if your branded URL is taken, you may be able to register an alternative address that accurately represents your brand. That said, if you own the rights to a given name, make it your username so that others cannot take it.
3. Take action. If you find someone else at facebook.com/[your brand], and it looks like you or it relates to your industry, initiate a complaint on the IP infringement form. You will need to outline what IP rights are infringed (find IP definitions outlined here) and how the content infringes your rights. The building blocks of intellectual property are:
- Trademarks protect identity. Image and name recognition remain essential elements of product and service marketing. This is where you are the most likely to face a conflict in your username registration, because trademarks directly relate to brand identity.
- Copyrights protect expressions. This includes a wide range of creative efforts including writings, drawings, songs, pictures, and movies. The mark protects against being copied and you must actively manage, secure ownership, register, license, protect, and defend those rights.
- Patents protect ideas. A patent gives its owner the exclusive right to make, use, and sell the patented technology for a limited period. A strong patent can exclude competitors from the market and is often the only thing protecting small, innovative companies from larger, wealthier competitors.
Remember, Facebook domain names are not for sale. Any offers to sell you back your username for a fee violates Facebook's rules and may also be illegal. This measure is intended to prevent squatters, but the site can still be abused by usernames intended to infringe on trademark rights. The IP infringement form offers an excellent first step of recourse and shows that Facebook understands the value and a brand's trademark rights.
4. Work with Facebook. In order to help protect users and prevent trademark fraud, Facebook reserves the right to remove and/or reclaim any username at any time for any reason, so there is hope if you are justified in the reasoning behind your IP infringement form. It remains to be seen how individual claims will be process and resolved.
5. Look for another solution. If Facebook does not resolve the issue to your satisfaction, consult a trademark litigator. IP law firms work with companies to safeguard their marketing and branding efforts everyday.
The trademark litigation process will require you to prove the worth and strength of your brand. In litigation, trademark registrations are valuable. Your company's history matters, particularly the history of how your brand has appeared and the extent to which it has been used in the market. Detailed record keeping (including all revenue and expenses, advertisements, website traffic, media coverage and customer testimonials) demonstrates the brand's commercial strength and are very valuable. Strong brands receive broader protection from the courts.
It may seem like a drastic step to pursue a traditional legal course of action for policing marks on social networks, but it is necessary where marks are used in an unfair or confusing manner. With the onset of social media, many marketers don't realize that newer technologies, such as web pages and software, are protected by copyright and trademark laws the same ways as traditional works such as art, photography, and architecture.
You have created and established a successful brand and understand the work that goes into the process. Online marketing on social networks like Facebook offers a new landscape that demands you also familiarize yourself with the legal procedures that are readily available to protect the brand you worked so hard to build.
Anthony J. Biller, Esq., is a member of Coats and Bennett and leads the firm's litigation practice.
