From business and social networking sites like Facebook and LinkedIn, to media sharing platforms such as YouTube, social media offers a host of opportunities for business owners to promote their companies and now forms a key part of many business’ marketing strategy.
However, the growth in the importance of social media also presents some new challenges. One of the key pitfalls is the risk of intellectual property infringement or infringing IP rights belonging to third parties. Likewise, it is vital that companies monitor their own IP and ensure that it is protected from unauthorised use.
IP infringement on social media can occur in many ways:
- Counterfeit goods – unfortunately, the internet is rife with fake goods. While in the past counterfeiters tended to trade through standalone websites and e-commerce platforms like Amazon and eBay, they now seem to be offering products through social media platforms.
The 2016 study “Social media and luxury goods counterfeit: a growing concern for government, industry and consumers worldwide” looked at 750,000 Instagram posts for luxury fashion brands and found that 20% of them related to counterfeit/illicit products.
Last year, the UK Intellectual Property Office (IPO) published a report suggesting that over five times more counterfeit goods were sold in invite-only groups on Facebook and Twitter than open groups.
- Unauthorised content – IP infringement can also arise from the unlawful use or distribution of content, including or text, photographs or videos.
- Business trade mark misuse – both registered and unregistered trade mark rights.
- Products infringing a design or patent – this can include either a registered or an unregistered design or a patent protecting a product.
What to do if your IP has been infringed on social media
The terms and conditions for users of many social media websites preclude IP infringement and, in theory, they will take action if notified of a breach. Some platforms, including Twitter, Facebook, YouTube and Instagram, have specific forms to make it easier for rights holders to submit any complaints of infringement through a ‘takedown request’.
Before taking this action, you may consider contacting the third party responsible in an attempt to resolve the dispute, perhaps by letter before action. However, be aware that this may not always be appropriate and, in fact, could run the risk of negative publicity. Also, it may be difficult to identify the person responsible, or to get their contact details. Instead, we recommend seeking legal advice before making contact, or to clarify whether your rights have been infringed.
Is enforcement via takedown procedures effective?
Are the takedown forms easy to use? Are complaints dealt with expeditiously by platforms? Can infringers simply pop up again with another username or account?
Fortunately, the forms are straightforward to complete meaning that complaints to be made swiftly. However, the success rate thereafter is mixed in our experience. This may depend on the nature of the complaint (for example, complaint about patent infringement will be more difficult to assess than one for, say, misuse of a photograph).
Should social media platforms be more proactive in identifying and combatting infringement of IP?
The outcome is also dependent on the particular platform; in our experience, Twitter often seems reluctant to take action without a Court order. In fact, the IPO report mentioned earlier noted that the volume of trade mark notices Twitter received in the second half of 2015 was down 33% compared with the first half.
In December 2017, a BBC report looked at counterfeiting on Facebook and revealed that it had reported two sellers from which it had purchased counterfeit goods. However, no action was taken. Indeed, Trading Standards has criticised the website for not doing enough. Arguably, the websites have not kept up and are failing to live up to the expectations of consumers, rights holders and authorities.
However, regardless of the potential challenges in getting infringing content removed, or having products removed from sale, it is crucial that rights holders police social media and, if necessary, take steps to protect their IP.
Internal procedures are also important. For example, implement a social media policy to help educate and train employees, enabling them to identify and report possible infringements. This may also help them avoid making unwitting infringements of third party rights.
With social media increasingly being used as a tool to drive consumer sales, the issue of stamping out infringement is becoming even more pressing for rights owners. Undoubtedly, in the not too distant future, websites will be forced to push the issue higher up their agenda.
Disclaimer: Anything posted on this blog is for general information only and is not intended to provide legal advice on any general or specific matter. Please refer to our terms and conditions for further information. Please contact the author of the blog if you would like to discuss the issues raised.