For most of us, the presence of the internet and social media in our lives represents a mixed blessing. On the one hand, it has brought people together in a way that was never possible before. Your nearest and dearest are near even when they are thousands of miles away. You can talk to anyone, anywhere at any time. On the other hand, such access is not without its drawbacks. As time has gone by, we have all become aware of problems previously unthought of - privacy issues amongst them. How we use the power of the internet and social media is worthy of thought and careful consideration.
It is no different for companies. Reaching and engaging with customers and potential clients has never been easier, although getting heard amongst all the noise can still be challenging. Love for your products and services can spread like wildfire and the social media game has somewhat levelled the playing field for smaller companies trying to get the world’s attention.
But, there is no up without down. The price of getting it wrong on the world wide web can be devastating and the trademark world is feeling increasing pressure to manage trademark disputes and infringements differently. Many companies and their counsel are seeking ways to meet those demands with creative methods of protecting their intellectual property. Others have not.
Do the critics adequately understand what a company stands to lose in relation to trademark infringement?
I think it’s a valid question. For most people in everyday life, property rights are an absolute concept. If you make your neighbour a cup of tea, they do not acquire rights by the mere use of your mug. You can let a friend borrow your car without concern that they could later lay claim to it. The public’s perception of ‘ownership’, how it comes about and how it moves forward is very different to how ownership of a company’s trademarks works.
The ownership of IP that a company creates is not absolute. The rights that they acquire are conditional and subject to change. In most countries, the responsibility to police use of and protect their trademarks falls to the company themselves. Should they not fulfill this responsibility, they stand to lose their acquired rights to what they created, in many instances at vast expense. To draw the analogy forward then, if loaning your car to someone (or someone ‘borrowing’ it without permission) meant that they could acquire rights over your car, you too would behave much more cautiously and act quickly in defense of use of your car.
To further complicate matters, the rules upon which trademark rights exist are shifting sands. With each new development of the internet, social media application and trend, comes a new challenge for trademark owners. The use of hashtags is a case in point and there is little clarity to be had as yet as to which signpost leads to the safest road. Hashtags are ultimately designed to be used by third parties rather than the creator themselves. The purpose for a business of creating a hashtag campaign is to have your customers use it in sharing their appreciation of your company and its goods or services.
But can this third party use weaken your rights?
At this point, it is unclear with current case law leaning both ways. The risk comes in you (or others) creating hashtags that contain your trademarks. Where a business that uses popular and trending hashtags to promote their own goods and services, they need to be careful that these hashtags are not the trademarks of another business. Sometimes it can be hard to tell. What looks like a simple inspirational hashtag might well be a tagline registered as a trademark by another business. Should that mistake be made, will it be treated as trademark infringement? There is no certainty on this question and so caution is strongly and definitively recommended.
From the other side then, what about hashtags created using your company’s trademarks? Can use of those by other businesses (as opposed to merely the general public) diminish your position in relation to your trademarks? Again, it is far from certain. Keeping a close eye on the use of your trademarks as hashtags, while being far from an easy task, is an essential one. At least until the question of whether another business using your hashtag containing your trademark in the course of their commercial and promotional dealings can constitute infringement has been settled one way or another.