Social media has become a part of our everyday lives. While these platforms can serve a purpose in our personal lives, they can also be a powerful tool in reaching consumers and building brand recognition. The intersection of social media and intellectual property can be challenging to navigate, though, and if you don’t understand how the two interact with each other then you could either fail to notice when your protected property has been infringed upon, or you could unintentionally commit infringement. Either way, lack of knowledge about how intellectual property and social media play off each other could put you and your business in a difficult position.
How infringement occurs in social media posts
When looking at social media, it’s important to remember that infringement is the misappropriation of a protected mark or work. In other words, an unauthorized use that violates trademark or copyright protection can be deemed infringement.
The sad reality is that infringement occurs all the time in the social media landscape. Here are some ways that infringement occurs in this context:
- Sharing images and videos: Most photographs and videos are copyright protected, even if they’re not registered. Therefore, the use of these works in a TikTok post, for example, can constitute an infringing use. This could be true even if the material is used to create a new post.
- Using music: Using a music soundtrack in the background of social media posts can be infringing, too, unless the social media page’s owner has permission from the music’s creator to use the track in question. Infringement can occur here even if only part of a song is used.
- Creating fake profiles that utilize a protected mark: If a trademark is used in a profile to confuse consumers and draw traffic, then infringement has likely occurred. Selling counterfeit goods also directly violates a protected trademark.
- Hijacking a hashtag: Hashtags can be an effective way to draw attention to posts and redirect online traffic. But misusing a brand’s hashtag to divert traffic in a way that confuses consumers can be deemed an infringing use.
- Sitting on a username: There are a lot of handles out there in the social media world. When one of them is identical or similar to a protected mark and is used to deceive consumers or generate confusion, then infringement may have occurred. This is also true if the intent of securing the handle is to extort money from the mark holder.
How is social media evidence used in intellectual property cases?
Social media evidence can play several roles in an intellectual property case. This includes:
- Establishing the first use of the mark or work in question, which can be indicative of ownership.
- Creating a timeline of use in all contexts, thereby establishing each time the mark or work was infringed upon and in what context.
- Demonstrating how consumers were confused by the misappropriation of the mark.
- Helping to establish damages based on the extent, intent or egregiousness of the infringement.
Keep in mind that there can be a host of evidentiary issues associated with social media posts. It’s therefore critical that you understand the rules of evidence and how to advantageously navigate them in your intellectual property case.
Do you have lingering questions about how to approach your intellectual property dispute?
If so, then now is the time to seek out any guidance that you may need. These intellectual property cases are oftentimes complicated matters, so it’s best to ensure you have the knowledge and legal skill set necessary to address the issue at hand. Speaking to an attorney might be a good first step in acquiring both.
