Social media is evolving quickly and has become the premiere outlet and platform for marketing. With new forums come new challenges. Public relations companies and marketing experts should be aware of the many potential legal issues and sources of potential liability when creating media campaigns, advertisements, blogs, or other marketing activities on behalf of their clients, which may include celebrities, entrepreneurs, artists, and established companies. Public relations companies and the like should be cognizant and aware of the fact that litigation related to “social media” advertising is on the rise as rights holders seek to (a) protect their rights and (b) curb perceived instances of infringement. We regularly advise public relations companies and marketing experts on a myriad of potential sources of liability based on a variety of issues, including:
(1) Does your marketing campaign, including photographs and video, potentially infringe upon the trademark and/or copyright rights of a primary or secondary rights holder?
(2) Can the comments made on behalf of your client and/or the client’s products be construed as “disparaging” or “unfair competition” by a competitor?
(3) Have all necessary primary and ancillary rights related to the use of photographs and videos been secured?
(4) Have all endorsements paid by individuals or companies been disclosed as mandated by the Federal Trade Commission (FTC)?
Addressing these issues at the start of a project will avoid potential issues down the line.
Trademark & Copyright- Starting Your New Business with the Proper Foundation
When starting any new business, we highly recommend addressing your intellectual property needs from the start in order to avoid subsequent (and unexpected) problems, disputes, and possible litigation down the road. New business owners and designers, for example, should work with counsel to establish and secure legal rights to their brands, logos, company names, designs, websites, and even slogans. This will save you significant headaches and give you the freedom to focus on what is important - your new business.
Trademark- Likelihood of Confusion
When selecting a potential trademark, it is important to minimize the risk of "likelihood of confusion" between your mark and an existing mark. The test for whether your mark is "confusing" with an existing mark (and therefore subject to potential rejection and/or challenges) is not simply whether the two marks are different when compared "side by side." The test is whether the two marks create the same overall impression, which is a much stricter standard and involves careful legal analysis.
Disparaging Online Posts- Protect Your Brand, Officers, and Company
Competition in the marketplace has become fierce and, in some cases, improper. An improper review or comment about a company's products, services, or executives by a competitor can have long-term negative effects on your brand and reputation. This type of improper activity may constitute actionable unfair competition, disparagement, defamation, and other causes of action. Protect and enforce your rights and be proactive about "shutting down" this type of improper conduct.
Buying a Business- Transfer Those IP Rights!
If you purchase or otherwise acquire a business, be sure to properly transfer or assign any existing intellectual property rights, including trademarks, copyrights, and/or patents. This is often overlooked by individuals and companies who purchase an existing business or the assets of a business. This is an important step that will spare you issues and potential disputes down the line.
Difference Between Trademark and Copyright
I'm often asked to explain the difference between a trademark and a copyright. A copyright protects authors' "original works" including literary, musical, dramatic, and artistic works, while a trademark is a word, brand, logo, slogan, packaging that serves to distinguish your goods or services from those of others.