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Technology: Risks to Brand Protection When Advertising Through Social Media

Social media presents unique perils for businesses because of its low barriers to entry and the way through which advertisements containing the business’s brands may be deployed across social media platforms. The outcome is a certain loss of control due to the content against which an advertisement may run. Whereas imitating franchised brands in a printed or brick and mortar store, for example, requires a significant outlay of capital, nearly anyone has the ability to impersonate that brand on a social media platform. And, when that brand advertises through social media, placement of its advertisement in terms of the content against which it runs raises additional issues. In this regard, there is the risk of unauthorized use of a brand, and negative repercussions associated with undesirable placement.

For example, the placement of the advertisement itself can be an area of concern. An advertiser may not have direct or complete control over the placement of its advertisements on social media sites and, therefore, it is not always possible to ensure that an advertisement will not appear alongside content that is less than flattering to the brand. This risk was illustrated recently when companies whose advertisements appeared on one social media site along with content glorifying violence were themselves targeted by groups for having run advertisements alongside the offensive content. 

A variety of strategies exist to counteract the risk of unauthorized brand usage in social media. Some companies have pursued a prophylactic approach, aggressively registering as many brand-related usernames, including common misspellings, as possible on Twitter, Facebook and other sites to narrow down the number of possible usernames unaccounted for, and thus available to, just about anyone. This strategy also allows brands to maintain control of content associated with confusingly similar usernames. While this strategy may be effective to guard against some of the most flagrant or obvious instances of infringement and possible loss of control over the advertised message, the infinite permutations of usernames and the increasing number of social media sites present practical challenges to implementing this strategy.

Another approach is to monitor social media websites for potential infringement. Some brand owners use automated tools or services, while others rely on manual policing. However, given the estimated 1.11 billion Facebook users and 500 million Twitter users and counting, the human resources required to effectively monitor social media use is more than most companies can bear and professional services may be a cost prohibitor. And, while mainstream social media sites have published takedown policies to address instances of infringement, these policies are not always as accommodating or applied as consistently and quickly as brand owners might hope. It should not be assumed that, even with policies in place to thwart infringement, the site can or will be able to address problems efficiently and effectively. If the infringing activity cannot be removed voluntarily, it may be necessary to take legal action. 

Finally, having an understanding how the selected social media platform operates, and what options are available to protect against any collateral damage resulting from placement alongside offensive content is a must for advertisers. Twitter, for example, updated its Promoted Tweets service in December 2012 to target negative keywords, which allows advertisers to restrict Promoted Tweets from matching against searches for certain words. This additional keyword matching option can be used to protect against unwanted inclusion or association with the identified negative keywords.

If you are an advertiser, brand manager or agency responsible for promoting a brand through social media, it is important to consider and implement best practices at each step in the development and placement of an advertising campaign to help ensure that the brand is adequately protected.

This article was previously published by InsideCousel. 

© 2019 Neal, Gerber & Eisenberg LLP.


About this Author

Andrew G. May, General & Commercial Litigation attorney, Neal Gerber law firm

Andrew G. May is an associate in Neal Gerber Eisenberg’s Litigation Practice Group. With broad experience and a comprehensive understanding of all phases of the commercial litigation process, Andrew is able to deliver dynamic solutions to complex legal problems.

Andrew’s practice is national in scope and encompasses a wide array of litigation matters. As reflected in his representative experience, Andrew has played key roles in driving favorable results for clients in a number of significant matters. He has drafted and argued...

(312) 827-147
Katherine Dennis Nye, Intellectual Property & Technology Transactions attorney, Neal Gerber law firm

Kate Dennis Nye focuses her practice on assisting clients with their branding and marketing needs. Kate counsels clients on trademark clearance, and assists them with filing new trademark applications and maintaining their trademark portfolios worldwide. She also manages intellectual property policing and enforcement matters for numerous clients at all stages of such disputes, and her litigation experience includes both federal court and Trademark Trial and Appeal Board proceedings.

Additionally, Kate regularly works with clients to review and vet marketing and promotional material, including clearing promotional taglines and ensuring compliance with the rules, regulations, and best practices governing advertisements. She also helps clients appropriately structure game promotions, including drafting rules for sweepstakes or contest campaigns. Kate has also assisted clients in responding to inquiries from the Federal Trade Commission regarding advertisements and in assessing competitor claims of false advertising under the Lanham Act.