Franchise Bulletin: Social media: Legal top tips for marketing on social platforms (Part 1)

Part 1: intellectual property issues

Who owns what you post?

Check the terms and conditions for each social media platform you use (or get your lawyer to do it if they seem a bit dull). Often they will allow the platform provider to do whatever they want with your content once you have posted it. You might be OK with that, but it underlines the importance of thinking about every post.

You need to make sure that you are happy to release that content into the wild and relinquish control over its future exploitation.

Late to the party?

Cysbersquatting isn’t just an issue that affects domain names. Many businesses find that their preferred online moniker has been registered by a third party by the time they get around to engaging with social media as a business tool.

Different platforms will have different rules for dealing with these issues but, in general, unless the account is being used in a way that infringes your intellectual property rights, the platform provider is unlikely to intervene.

Your lawyer may be able to find a solution for you in the platform’s Ts&Cs and policies, but often there is no legal remedy. In those cases, you may have little choice but to adopt a different username, or to offer to purchase the account from the current owner.

If you choose the former, consider the impact on the new name from a brand and trade mark protection point of view. Does the variation on the main brand name dilute or undermine the distinctiveness of the brand? Is the username a variation on your core brand that might be worth protecting as a trade mark in its own right?

If you choose to offer to buy the account, there are ways to make discreet approaches and keep the price reasonable.

Trade mark infringement and passing off

If an account that bears your brand name (or one similar to it) is being used commercially by a third party then, on the face of it, you would appear to have a claim in trade mark infringement or passing off. Chances are though that the Twitter account will be the least of your worries and there will be other infringing acts online and elsewhere to complain of.

Of course, the world is a still a big place, and the current owner of that account might have every right to use that name in relation to the goods or services they provide in their own territory. As always, these things depend on the facts. Because intellectual property laws include remedies for “groundless threats”, it is important to talk to a specialist lawyer before taking or threatening legal action.

Parody accounts

What can you do if someone is using a social media account which, at a glance, looks like it might be connected to your business, but is in fact a parody account which pokes fun at your business? You know you should probably be flattered, because no-one parodies a failure, but it just doesn’t sit right with you…

Parody accounts are not typically used in the course of trade, so trade mark infringement or passing off claims will fall at the first hurdle. Defamation and similar claims will also be difficult (particularly as, since the Defamation Act 2013 came in, businesses have to prove “serious financial harm” to succeed in a defamation action). Moreover, threats of legal action may find their way into the public domain, achieving little more than proving that you have no sense of humour.

As ever, check the Ts&Cs. You may be able to compel the account holder, via the platform provider, to at least include a prominent statement on their feed making it clear that it is a parody account and not connected to you.

The key message is this: by all means have your lawyer look into it – everything turns on its own facts – but where there is no legal remedy the best response is probably to publically ignore it, learn what you can from it about perceptions of your business in the marketplace and factor that into your marketing strategy. In the words of Don Draper: “If you don’t like what’s being said, change the conversation”.