The Impact of Social Media and the Internet on Trademark Law and Enforcement

Jun 16, 2023 | Business Law

The Birkin bag has been an expensive, exclusive status symbol among the rich and famous ever since luxury brand Hermés introduced it in 1984. 

Birkin bags regularly sell for tens of thousands of dollars, and you wouldn’t be wrong if you said the most expensive Birkin bag ever produced is the Sac Bijou Birkin, a $2 million-rose gold miniature bag studded with 2,712 diamonds.

No Birkin has ever sold for more money than the Sac Bijou Birkin, but the most valuable Birkin bag might not be a real bag but the brand itself. 

In 2021, artist Mason Rothschild started designing “MetaBirkins,” $450 nonfungible tokens (NFTs) of Birkin bags. But instead of handcrafted bags that take artisans at least 18 hours to make, Rothschild’s digital representations appeared to be made out of garish shag fur, emojis, melted plastic, and even a thawing wooly mammoth.

Hermés took legal action against Rothschild and sued him for trademark infringement. In February 2023, they won. While they were only awarded $133,000 in damages, their case has potentially profound implications for the future of trademark law and enforcement in the United States.

How has the internet changed trademark law?

At its most basic level, a trademark is a recognizable word, phrase, sign, or symbol that clearly identifies a brand owner’s product or service. Famous trademarks include McDonald’s Golden Arches as well as the “I’m lovin’ it” slogan, or Nike’s swoosh logo and the “Just Do It” tagline.

As the internet and social media platforms have transformed marketing and advertising, trademark law has become more complicated. Search engines have made it easier for trademark owners to identify potential cases of trademark infringement while social networking sites and eCommerce companies are snapping up the web addresses and usernames brand owners need to increase their market share.

What digital assets can be trademarked?

According to Investopedia, a digital asset is anything that can be “created or stored digitally, is identifiable and discoverable, and has or provides value.” This definition includes cryptocurrency and blockchain as well as digitized documents, audio, video, images, logos, websites, written content, and even a brand name.

This is a fairly broad scope, but with the metaverse’s continuous creep into our everyday lives, big brands across multiple industries have begun filing trademark applications for their digital assets as part of their brand protection efforts. 

Even if you aren’t a giant corporation, the internet and social media have made it much easier for businesses like yours to have clients all across the country. Registered trademarks—those applied for and approved by the United States Patent and Trademark Office (USPTO)—provide the most protection for you and your brand.

While the process of registering a trademark may be something that you can look up online, keep in mind that the process is time-sensitive and requires a high degree of accuracy to move forward. 

The last thing you want is your trademark getting delayed because of avoidable rejection. A trademark attorney can help you field the paperwork, ensure to-the-letter accuracy, and meet deadlines so you don’t have to take valuable time away from running your business. 

Types of online infringement

Unauthorized use of a trademark allows others to benefit (even if they don’t mean to) from the goodwill and reputation you’ve worked hard to build for your brand. But not all trademark violations rise to the level of infringement.

Trademark dilution occurs when a company uses a trademark with household recognition to sell an unrelated product or service. For example, most consumers won’t think a weed killer called “Paul Mitchell’s Weed-B-Gone” is actually made by hair care giant Paul Mitchell. But it is entirely possible that having a weed killer in the same store or similar packaging as Paul Mitchell hair products could dilute the value of the prestige salon brand.

Infringement happens when the unauthorized use of a trademark is likely to confuse or deceive consumers about who or where a product or service came from. According to the National Law Review, the most common types of online trademark infringement include:

  • Cybersquatting
  • Using protected marks in advertising, hashtags, social media copy, etc.
  • Fake or misleading usernames on social media platforms or social networking sites

Cybersquatting happens when someone registers domain names that are the same as or very similar to registered trademarks in the hopes that the trademark owner will pay a ransom fee to buy back the address. U.S. Congress passed the Anticybersquatting Consumer Protection Act in 1999 to protect both consumers and trademark owners from this type of infringement.

It’s also incredibly common for protected marks to be used in captions, ad copy, hashtags, and even usernames or handles on most platforms. Sometimes, using a common misspelling of your mark or using a logo that looks almost the same as yours makes it possible for infringers to capture information from—or even hack—your potential customers.

How to monitor your intellectual property for trademark infringement

There are a multitude of ways you can protect against trademark infringement online. Third-party watch services can alert you when similar marks are filed or actively used, but companies with smaller budgets can also set up Google alerts for their protected marks. And even the least technologically savvy brand owner can regularly search Google, Amazon, and social media platforms for accounts that post content related to their trademark. 

The course of action you take after finding a trademark violation will vary depending on the severity and type of infringement. In some cases, you may be able to send a simple cease and desist letter. If you need to reclaim usernames, it may be easier to work with an online platform’s internal review team. 

But if you’re struggling to get the results you need, don’t hesitate to turn to a knowledgeable intellectual property lawyer.

Consult a Texas trademark attorney

If you need help with trademark or copyright infringement, contact our experienced team at The law firm of Shann M. Chaudhry Esq., Attorney at Law PLLC. Schedule a consultation to get started.

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