This post was written by Emily Campbell, shareholder at Dunlap Codding.

Social media is a key tool for businesses. It can bring a brand to life and connect a business with customers. A social media strategy, well executed, can be very profitable. There are, however, several intellectual property issues lurking in this space, and profitability, good will, and name recognition can suffer if you run afoul of any of them. Here are a few things to think about.

Protect your brand. First things first, if you are going to put your brand out in the marketplace, you want to be sure you are not infringing on anyone else’s rights.

Emily Campbell of Dunlap Codding

Emily Campbell of Dunlap Codding

Before creating and adopting any brand name or mark, it is a good idea to conduct a search to make sure that you are not using a name that is identical or confusingly similar to someone else’s. It is also a good idea to conduct similar searches periodically, from an offensive standpoint, to ensure that no one is infringing on your rights. You can do this by way of e-mail alerts or through a watch service (ask your lawyer about this). These strategic moves make sense whether you are planning a social media campaign or not. Money invested in brand development can be lost if you have failed to have proper research done and become aware of your error only after significant resources have been expended. And remember, it is much easier to create a brand and image than it is to have to rebrand. Rebranding is very costly, time-wise, goodwill-wise, and profit-wise.

You can also protect your brand by reserving your company name (or product names) as a username on various different social media sites. This will prevent others from doing so.

Lastly, it’s important to use your brand name properly. Improper use can harm your ability to enforce trademark rights, and in some cases, can eliminate your enforcement ability altogether (i.e., genericism of marks like the former trademark, Aspirin). A brand standards guide can set forth some guidelines for employees to follow when using your company brand in advertisements, in social media, and in all types of discourse. It is a great idea to involve your trademark attorney in the adoption of the brand standards guide. He or she can help you formulate guidelines that will help you maintain your company’s trademark rights.

Use other companies’ trademarks properly. Using another company’s brand name(s) can be tricky. Generally speaking, using another company’s brand name to describe its products is acceptable. Using another competitor’s brand name to truthfully compare its products to yours is even okay. Using another company’s brand name in such a way that consumers believe the other company and your company are affiliated with your company, however, is not okay. Ultimately, determining whether third party usage is appropriate can be tricky. It’s best to consult with legal counsel when any third party mark is used in social media.

Use your own art or make sure you have the appropriate license to use someone else’s. Copyright infringement can arise when you use or reproduce art without permission. Creating and using your own photographs, graphics, and videos in social media is ideal with regard to copyright liability. In cases where it seems more appropriate to use stock images or someone else’s images, permission or a transfer of rights is required.

Use caution when using a person’s name or likeness. Using another person’s name, voice, photograph, or likeness, particularly a well-known person, is a great way to draw attention to your business. It is also a great way to run into issues with right of publicity laws if done without permission. Each state has its own set of laws on this topic but generally speaking, if your company intends on using another person’s name, voice, photograph, or likeness, whether the person is well-known or not, you will need permission. It is a good idea to talk with your attorney to assess your businesses needs for model release and publicity agreements.

Emily Campbell is a shareholder at Dunlap Codding, providing strategic counsel to clients on trademarks, copyrights, internet law, and licensing. Emily has been selected by attorney peers for inclusion in Oklahoma Super Lawyers–Rising Stars. She received her J.D. from Oklahoma City School of Law.

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