Australia: How trade mark registration can help protect your brand on social media

The effectiveness of social media as a means of engaging and communicating with clients and customers has seen a majority of Australian businesses take steps to take advantage of this powerful new medium.

However, the ability to instantaneously post, blog, tweet, tag, comment, message, rate and share has brought with it significant legal risks. From brand protection to employment, advertising standards to privacy, and identity theft to consumer law, businesses are faced with a wide range of familiar concerns, albeit in a new form.

This note focuses on the discreet idea of how trade marks can help a business protect itself and its brand, and mitigate some of the potential risks associated with engagement in social media.

Brand value can take many years and considerable resources to establish, but in the age of social media it can literally take only moments for potentially irreparable and permanent damage to be wrought by unauthorised use of your trade marks.

As many readers would know, obtaining registration of an Australian trade mark for specified goods or services grants its owner a monopoly to use, and prevent others from using that trade mark throughout Australia in relation to those specified goods or services.

If properly maintained and used, a trade mark registration can be a powerful weapon which provides an efficient means to bring unauthorised or unaffiliated third parties to heel should they attempt to use the trade mark (or a deceptively similar trade mark) in a social media context without permission.

Being keenly aware of the importance of branding and protecting intellectual property, many social media platforms have developed specific policies directed towards this issue.

However, the reality is that most of these rely on the ability of an intellectual property owner to point to a trade mark registration, which provides the social media platform with a reliable short form notice of an enforceable right.

It is more difficult to persuade social media platforms to take steps to protect unregistered brands. This is because the platforms do not want to become the arbiters of issues under the Australian Consumer Law or the law of passing off, and are more likely to leave it to brand owners to obtain enforcement in the courts.

In our experience, it is much easier to achieve the swift assistance of social media platforms if you are armed with a trade mark registration.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.