IP and social media – mind your Ts, Cs, Ps and Qs

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Social media is a powerful marketing tool. Just ask all those small businesses who have signed up this year to Facebook groups like Chooice (originally called New Zealand Made Products).

If used and managed properly, platforms like Facebook can significantly contribute to brand growth. If not used and managed properly though, they can impede growth.

From an IP perspective, managing social media is just as important as using social media.

Here then are a few things I recommend businesses do.

Mind your Ts

Your principal trade marks – be they names or logos – should be registered. They should be registered not just because registration of a trade mark provides the best protection against infringers, but because registration is very important when it comes to enforcing trade mark rights on social media.

Registration is very important because the online complaint forms used by Facebook, Instagram, and Twitter, for example, all request registration details.

If your trade mark is not registered, you risk any complaint you make against unauthorised use of your trade mark – by a competitor or influencer, for example – not being upheld and the unauthorised use continuing.

Mind your Cs

Copyright works include logos and photos, as well as sound recordings and films. Logos, photos, music and videos are all used extensively on social media – sometimes, however, without the copyright owner’s permission.

When this happens, it is important for copyright owners to assert their rights.

The requirements for enforcing copyright rights on social media are very similar to the requirements for enforcing trade mark rights: you must provide details of your copyright work and an authorised example of your copyright work in action.

If you can’t readily provide these, as with unregistered trade marks you risk your complaint not being upheld and the unauthorised use of your copyright works continuing.

Mind your Ps

You should get permission if you want to use another company’s logo or products in your social media content.

If you don’t get permission, you will infringe copyright in that company’s logo and could be in breach of the Fair Trading Act for giving a false or misleading impression that the brand owner has approved your use of their product.

Mind your Qs

New Zealand is a liberal, multi-cultural country, with many different ethnicities.
Businesses should give plenty of thought then to Principle 1 of the Advertising Standards Code: “Advertisements must be prepared and placed with a due sense of social responsibility to consumers and to society”.

Businesses who don’t take this principle into account could find themselves not only on the end of a complaint to the ASA, but also at risk of losing customers. And which business at this moment in time wants that?

Finally, I would like to wish all readers a safe and happy Christmas, and a healthy 2021.

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Ben Cain
Ben Cain
Ben Cain is a Senior Associate at James & Wells. He can be contacted at 07 928 4470 (Tauranga), 07 957 5660 (Hamilton), or email ben.cain@jamesandwells.com.

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