Social media, whether you view it as friend or foe, invades every part of our lives and brands were quick to become part of that narrative. This creates a number of challenges for the companies involved. Standing out amongst all the noise being a case in point.
However, this is far from being the only challenge associated with the use of social media by brands of all sizes. Joe Quigley of Rivet LLC shares some insights:
Do you think that social media helps or hinders both the promotion and protection of brands?
"I believe it is definitely a double-edged sword. To be sure, it helps promote brands and more importantly, it allows consumers to identify with and engage with brands in ways that can be very authentic and meaningful to the consumer. The encouragement of user-generated content with contests, repostings of consumer posts and the use of live stories or social media takeovers allow brands to connect with consumers in ways that we never even considered a few years ago. However, all the interaction involves some risk and that risk is magnified by the same elements that make social media powerful for promotion. The immediacy and the anonymous nature of a lot of social media mean that the same forces you use to promote your brand can also be turned around to damage your brand. I think it’s essential for brands to be in those spaces, but you have to be careful to consider how things may go awry and have strategies in place to deal with backlash and the like".
With the volume of exposure to brands wildly increased, has this impacted the general levels of confusion?
"I think one of the key takeaways from social media, particularly Instagram and Pinterest is that brands that might never intersect in a brick and mortar setting are living in the same place in social media. For instance, in the retail world, we know that if an accused infringer is a retailer selling only their own branded goods, such an accused infringer may very well rely on are arguments that the accused product(s) are never in the same store and that these different channels of trade and the way the product(s) are marketed and advertised are different enough that a consumer could never be confused. However, I think that Instagram and Pinterest complicate that position because the products will co-exist in those social media environments and may be in the same feeds or pinned on the same boards. I don’t know that it adds to the level of confusion, but I DO believe that they create opportunities for confusion to occur in ways that a plaintiff could not allege a few years ago.
Additionally, I believe that because many companies have detailed strategies for such social media campaigns and the use of specific hashtags have created additional arenas for confusion to occur that were not contemplated in any of the factors currently used to determine likelihood of confusion. I think smart plaintiffs will continue to mine those areas for potential overlap of brands that may not intersect in the brick and mortar world.
Additionally, I would add that social media can often be where in-house counsel may first become aware of potential or actual conflicts. In my experience in the retail world, there were many instances where a consumer or a potential plaintiff will post on a retailer’s social media with some Intellectual Property infringement allegation. Often times when a retailer receives a claim letter, it will include copies of postings made by consumers with claims that Retailer A has “knocked off” or stolen a design of Retailer B.
I think that counsel need to be careful with claiming that such angry postings are evidence of confusion because a posting that Retailer A is “knocking off” a design of Retailer B is actual evidence of a lack of conclusion. Because the consumer understands that the goods are coming from two different retailers, that consumer is clearly not confused about the source of the products".
What do you see as being the biggest challenge in relation to the use of social media for brands in the coming years?
"I think one of the big challenges is that for Social Media to work at its best, it needs to be authentic. I think the biggest challenge for brands is that they want to control the narrative of their brand but using social media allows for the public to engage with and comment on the brand in ways that the brand cannot always anticipate and cannot always control. I think one of the challenges is how do brands respond to criticism or negative commentary in ways that remain authentic to their core consumer because just as you have a way to now engage more with the consumer, you also have a way to disengage or alienate that consumer. I think that any brand that is going to be successful in Social Media needs a good strategy to engage with the negative and respond to it in a way that increases engagement and takes the criticism and seeks to use those opportunities to respond on brand and use it as an opportunity to do better".
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