The popularity of various social media applications, such as Facebook and Twitter, has grown at a rate that far exceeds the ability of courts and the legislature to keep up with regulations and their interpretation. A user on any one of these applications is able to post a comment, a picture, a link or logo within seconds of its creation, becoming a potential advertiser for their own company or for another business entity. At the same time, such a posting may open the user up to liability for trademark infringement, misuse or other causes of action.
Of particular importance at this intersection of social advertising and trademark law is the rights of individuals or small businesses with common law trademarks. In the U.S., trademark rights are created by use, not by an official registration. Any trademarkis a name, slogan, logo or any other indicator that a particular source provides a specific good or service. A common law trademark is one that is used and continues to be used in commerce without ever filing for official registration. Determining who has the legal right to use the mark is a question of priority. Without registration, the trademark owner may be able to enforce the mark against anyone using the same or a confusingly similar mark in connection with the same goods or services in the territory in which the mark is used.
Many small businesses have developed common law trademark rights through names or logos and have not had the mark registered, most often because they do not qualify for federal registration. With the growth of social media as a marketing tool, these businesses create Facebook pages and Twitter accounts, displaying those names and logos. Increasingly, these local businesses are being forced to abandon those marks or risk losing their social media accounts because a larger, national business has threatened them with legal action, even if the national business was not using the mark first.
A federal registration will help any business create solid, enforceable trademark rights. However, a federal registration does not always allow the owner to terminate the earlier use of a common law trademark. Facebook, Twitter and other social media applications are world-wide and cannot limit access to certain geographic territories because of federal or common law trademark rights. If you have had your Facebook page or Twitter account removed because of an alleged trademark violation, you may be able to have your page restored. Although courts are just starting to hear these cases, there are decisions and legal precedents that may support you if you have encountered these circumstances.
The combination of national advertising, social media platforms and traditional trademark principles create technical and very complex legal issues. Knowing your rights in this area is critical to your established goodwill and your continued business success.
For more information or to speak with us about your legal issue, please contact us in Ann Arbor at 734-665-4441, and in Ypsilanti at 734-483-3626. To learn more about Pear Sperling Eggan & Daniels, P.C., or any of our attorneys, please visit us at www.psedlaw.com.