Ten Issues to Consider in Launching a Social Media Presence

1) Trademark Highjacking in social media is a priority concern. The social media sites do little to prevent users from adopting usernames that incorporate third-party trademarks, thus misdirecting traffic and creating confusion in the marketplace. While Twitter threatens suspension of accounts that manifest a clear intent to mislead others and Facebook has a registration process for trademarks and a reporting option for infringement, there is little consistency in enforcement. Will the social media sites police similar trademark usages or trademarks that are not registered with the USPTO? What about foreign registrations? At this point, the trademark owner bears the responsibility of monitoring the marketplace and cannot rely on the social media Web site to do so, particularly because of the safe harbor defense that is available in most instances for social media Web sites.

2) Trademark Infringement is rampant in social media. Users frequently adopt usernames that infringe on trademark rights. Bloggers, video posters, and chat room participants frequently use trademarks without licenses. Social media users in general think they are just talking, but they ignore that their conversations canbe seen by millions of people around the world. They do not realize that legal rules govern their online conversation. As in the offline environment, not all of the unauthorized usages amount to trademark infringement. Some will constitute incidental usages. If, however, the usage creates confusion or implies some kind of endorsement by the trademark owner, then a case could be made for trademark infringement.