Navigating Brands and User-Generated Content
This is a summary of the lecture by Luca Grandi, Senior Legal Counsel at Ferrero, about digital brands and digital brand👉 A distinctive identity that differentiates a product, service, or entity. experience from the joint CEIPI European Patent👉 A legal right granting exclusive control over an invention for a limited time. Office Diplom Universitaire IP Business Administration
In today’s digital age, brands face unique challenges and opportunities in protecting their intellectual property👉 Creations of the mind protected by legal rights. (IP) rights online. This summary explores key aspects of digital brand management, including establishing an online presence, navigating user-generated content, and implementing effective protection strategies. From trademark👉 A distinctive sign identifying goods or services from a specific source. registrations to social media policies, we’ll examine the crucial elements that brands must consider to thrive in the digital landscape. Understanding these concepts is essential for any business looking to safeguard its IP and maintain a strong, positive brand identity in the ever-evolving digital world.
This lecture is part of the certificate course IP and digital technologies
https://ipbusinessacademy.org/certified-university-course-ip-in-digital-technologies
and part of the university diploma (distance learning) IP Business Administration
https://ipbusinessacademy.org/ceipi-epo-university-diploma-in-ip-business-administration-du-ipba
The digital world presents both opportunities and challenges for brand owners. A strong online presence is crucial for visibility, customer engagement, and brand communication. This summary explores key aspects of intellectual property (IP) rights in the digital realm, focusing on brand management, user-generated content (UGC), and strategies for online protection.
Protecting IP in the digital world requires a multi-faceted approach. Proactive registration, clear terms of use, careful selection of influencers, and cooperation with online platforms are all essential. Additionally, understanding when and how to react to infringements is crucial to avoid unintended consequences. By carefully managing their digital presence, brands can leverage the opportunities of the digital world while safeguarding their intellectual property.
Entering the Digital Landscape
Establishing a digital presence is now essential for brand owners. This includes creating websites, mobile apps, and engaging on social media platforms. These digital extensions require careful consideration of IP rights.
- Trademark Registrations: Existing IP portfolios are generally sufficient for initial brand presence on social media and e-commerce platforms. However, additional trademark registrations may be necessary, especially for downloadable software applications (International Class 009) and non-downloadable software like SaaS and PaaS (International Class 042).
- Social Media and “First Come, First Served”: Platforms like Instagram and Facebook often operate on a “first come, first served” basis for usernames. Therefore, it’s crucial to secure brand names as usernames early on. However, using a registered trademark as a username in a misleading or confusing manner can still be considered a violation.
- Domain Names: Registering brand names with top-level domains (.com, .org, .info) and country code top-level domains (.fr, .it, .us) is vital. Domain name usage can also establish rights that can be used in trademark oppositions.
- Licensing👉 Permission to use a right or asset granted by its owner. Agreements: Ensure that licensing agreements for content used in digital channels (e.g., images, music) explicitly cover digital use rights.
Key Takeaway: Proactive registration of trademarks, social media usernames, and domain names is crucial for establishing and protecting a brand’s digital identity.
The Physical vs. Digital World: Key Differences
The digital world differs significantly from the physical world in several key aspects:
- Time of Reaction: The digital realm demands swift action. Infringing content can appear and disappear rapidly, requiring brands to monitor their online presence and respond immediately to violations.
- Geography and Language: Online content transcends borders, creating a global audience. Brands must adapt their messaging to resonate with diverse cultures and languages, ensuring relevance and avoiding misinterpretations.
- Public: Online presence requires careful moderation. The language and style of content must align with the brand’s identity and appeal to the specific target audience.
- Exclusivity: Sourcing content from open databases carries inherent risks. The same visual elements could be used by competitors or in contexts that damage brand perception, highlighting the importance of unique and exclusive content.
Key Takeaway: The speed, global reach, and public nature of the digital world demand careful brand management and swift action against infringements.
Navigating User-Generated Content (UGC)
UGC can be a valuable asset for brands, but it also presents risks. Brands may be used, transformed, or depicted in user-created content.
- Terms of Use: Implementing Terms of Use (ToU) or “netiquette” on websites, mobile apps, and social media pages is essential. These terms should state the brand’s ownership of content and protection by IP rights.
- Idea Submissions: ToU can protect against claims of idea theft by users who submit similar ideas to ongoing projects.
- Rights to UGC: ToU should specify that the brand owns the UGC or is granted a perpetual license to use it. Users should guarantee their rights to the content and that it hasn’t been transferred to third parties.
Examples:
- Disney’s Terms of Use: Disney’s ToU clearly outlines the rights granted to them for user-generated content, including a non-exclusive, sublicensable, irrevocable, and royalty-free worldwide license to use, modify, and distribute the content.
- GoPro and Calvin Klein: These brands successfully leverage UGC by defining campaign rules and filtering content to align with their brand identity.
Reposting on Social Media Platforms
When users engage with social media, they inherently grant the platform certain permissions regarding their content. Understanding these rights, along with user guarantees and best practices, is essential for brands considering reposting user-generated content
Platform Rights: Social media users agree to provide the platform with specific usage permissions. These include a non-exclusive right to use, modify, and sublicense the content they upload, as detailed in the platform’s terms.
User Guarantees: When posting content, users are affirming they have ownership over the intellectual property. This is an assurance to both the platform and other users that they have the rights to share the material, without infringing upon third-party rights.
Brand Reposting: Brands can leverage user-generated content featuring their products or services. However, proper etiquette includes crediting the original creator and adhering to the rules and guidelines of the specific social media platform to avoid copyright👉 A legal protection for original works, granting creators exclusive rights. or other IP concerns.
Key Takeaways:
- Clear ToU are crucial for defining the use of UGC.
- UGC that is publicly available without a copyright notice is not necessarily free to use.
- Brands should ask for permission, consult ToU, negotiate licenses, or determine if any exceptions apply before using UGC.
Hashtags, Linking, and Ambush Marketing
These strategies are common in the digital world but require careful consideration of IP rights.
- Hashtags: Using a brand’s hashtag can create confusion or association, potentially infringing on trademark rights. This is particularly true if it drives traffic to another site. However, using the hashtag to promote the intended social media message is generally acceptable. Successful hashtag registrations include \#smilewithacoke (Coca-Cola), \#McDstories (McDonald’s), and \#MakeitCount (Nike).
- Linking: Linking to another document may be infringement if it creates a source for information that does not come from the original owner. Brands should check the third-party website’s ToU and restrict links to illegal, illicit, or off-brand content.
- Ambush Marketing: This involves associating with an event without paying sponsorship fees. It often involves direct references to the event. An example includes McDonald’s complaint to the International Olympic Committee about Burger King’s ambush marketing in Brazil.
Key Takeaway: Taking a “free ride” on a well-known hashtag, third-party content, or famous event may lead to infringement.
Influencers and Brand Identity
Engaging influencers can be beneficial, but it’s essential to ensure they align with the brand’s identity.
- Guidelines: Clear communication is key to successful influencer partnerships. Providing influencers with defined do’s and don’ts ensures their content accurately reflects the brand’s desired image and core values.
- Brand Association: Associations made by influencers can have a ripple effect on brand perception. Being aware of an influencer’s connections to other brands and celebrities helps to manage and mitigate potential risks or conflicts.
- Ferrari vs. Philipp Plein: This case serves as a cautionary tale about the importance of brand alignment. The legal action underscores that brands must actively protect their image and can take action against influencers whose content clashes with their established identity and values, leading to perceived reputational damage.
Key Takeaway: When engaging influencers, ensure they properly represent the brand identity.
Protecting Your Brand Online
When a valid IP right is infringed, brands can react and report it. Legal proceedings through the competent courts are effective but can be time-consuming and may not be suitable for new technologies or digital threats.
- Cooperation with Platforms: Working with e-commerce sites, social media networks, and ISPs is crucial for effective IP enforcement. These platforms have invested resources in tools and processes that allow brand owners to report and remove infringing content more efficiently than traditional legal avenues.
- Amazon Brand Registry: This program offers brands tools to manage and protect their trademarks on Amazon. By enrolling, brands can exert greater control over product listings, combat counterfeits, and provide customers with a more reliable shopping experience.
Key Takeaway: Strong cooperation with social media and e-commerce platforms is more time- and cost-efficient than traditional lawsuits.
When to React: Reputation and the Streisand Effect
Deciding when and how to react to online content that features your brand👉 "Your brand" is the unique identity and perception of a business or individual. requires careful consideration. Sometimes, attempting to control the narrative can backfire, leading to unintended consequences.
- Fair Use Doctrine: This legal principle allows for the limited use of copyrighted material without the owner’s permission, especially for transformative purposes. Examples commonly falling under fair use include satire, parody, quotation for commentary, criticism, research, educational purposes, and artistic creation. Even in the EU, which lacks a specific “fair use” doctrine, explicit exceptions exist within copyright law that grant similar flexibilities. Before taking action against perceived copyright infringement, carefully evaluate whether the use qualifies as fair use or falls within these legal exceptions, as an aggressive response could be counterproductive.
- Hate Speech and Fake News: Online platforms often have policies against hate speech and the dissemination of false information. Instead of directly engaging with hateful or misleading content, report it through the platform’s established channels. This approach allows the platform to take action based on its terms and conditions, shielding your brand from direct confrontation and potential escalation. By utilizing the reporting mechanisms, you can address the harmful content without drawing unnecessary attention to it or your brand. This strategy also prevents the brand from being perceived as amplifying the reach of such content.
- The Streisand Effect: Attempting to suppress information online can paradoxically increase its visibility. This phenomenon, known as the Streisand Effect, occurs when efforts to hide, remove, or censor content draw greater attention to it. Before pursuing legal action or demanding content removal, assess whether the potential for increased exposure outweighs the benefits of suppressing the information. Consider whether ignoring the content or addressing it through a carefully crafted public statement might be a more effective strategy to minimize any potential damage to your brand’s reputation.
Key Takeaways:
- Think carefully before attempting to remove content.
- Work with media and PR departments and use social media listening tools.
- Consider whether the content is gaining visibility.
