With the rise of brands having a presence on social media, cases of companies claiming intellectual property infringement and defamation on these platforms have inevitably risen. Recently in Wales, Arriva threatened legal action against the owner of ‘Arriva Trains Fails’ if a modified version of its logo was not removed from the sites.
Even more recently, Money Saving Expert founder, Martin Lewis, has brought a case against Facebook for fake advertisements featuring him and his brand endorsing products he had not approved, resulting in customers losing money in their investments which he claims has impacted his reputation.
In an age of developing technology, faking a brand requires only a smartphone but can create lasting damage. So, what can you do about it?
What can you do if you’re being faked or parodied?
- If you spot a fake account replicating your company, you need to decide; ‘is this causing genuine damage to my brand?’
- If you think it may have the potential to do so, keep a record.
- Take screenshots noting times and dates and any comments and reactions from other users. This will help show the extent of publication.
- Create an impact assessment to help determine your next steps. You need to make sure your company’s reaction is justified, proportionate and commercially viable.
Next, decide if it’s worth taking further steps. You can do this by asking yourself two questions:
- Firstly, is the profile using any of your branding? This includes registered or unregistered trademarks, logos, images, wording or anything that could mean this page passes as your own to a potential customer.
- Secondly, is there a case for defamation? Are the posts seriously harmful to your brand and can you anticipate some financial harm resulting from this account?
What counts as defamation in these cases?
Defamation is the communication of false statements that ultimately impact negatively upon a person or company’s reputation. You need to decide if an ordinary person could read something and think less of your brand because of what they have seen.
For example, imagine you own a burger company that only uses free range beef and an account was set up as if it were your own, posting that your company in fact uses battery farmed cows. If this resulted in many customers reacting angrily online, commenting they would boycott the brand and subsequently beef burgers took an immediate sales hit, this could be argued as a case of defamation.
However, you need to be careful in deciding if something is defamation if it is clearly labelled as a parody or as a joke. If the posts are clearly intended as something unbelievable and humorous, and the person seeing it can obviously identify that, it is less likely to do any harm.
What counts as infringing on your intellectual property (IP) in these cases?
Infringing on your IP can be easier to argue than defamation. This is the argument Martin Lewis’ case rests upon as his face and logos were used on adverts for services he had not approved, making people truly believe he endorsed and approved them, and ‘passing them off’ as his approved. Broadly speaking, registered trademarks protect the proprietor from their mark (or similar) being used by others in relation to whatever goods or services they are registered for.
Other rights can help where that is not the case. People are not allowed to represent to others some association with a company to benefit from its reputation where there is no association. They are also not allowed to copy original artwork, logos or words which attract copyright. If any of these things are happening, then there might be a case to bring for infringing on IP.
If the main concern is defamation, then you need to ask whether an ordinary person would genuinely not know the difference between the real brand and the parody/fake brand on social media. Proving someone was confused between the two can often be difficult, and this is when your screenshots and documentation can be useful.
What can you do if the account is clearly labelled as a fake?
This will certainly limit the likelihood of a defamation claim, because it means the reader knows it’s not your company. However, this doesn’t mean that there isn’t a case for some level of IP infringement.
There might also be other things you can do before you take legal action, such as report the accounts to the social media provider.
Twitter states in its guidelines that parody and/or fake accounts must be clearly labelled. The site tells users that their “bio should clearly indicate that the user is not affiliated with the subject of the account and the account name should not be the exact name as the subject of the account.
This limits the chances of people believing the fake or parody account is in fact not the real brand.
When should you consider legal action?
You should only consider action once you’ve taken the practical steps including an assessment of what impact this is having on your company.
Of course, prompt action should be taken if this is something that might case harm very rapidly – as social media can escalate quickly.
You should always carry out a full assessment like this with a lawyer who can advise you on the options, strengths and weaknesses of your case as well as other practical risks and benefits.