Strategizing Intellectual Property protection on Social Media

Intellectual Property (IP) like any other asset requires investment of time, money, patience and skills to reap the highest returns. Just like you wouldn’t exploit your tangible property without a fool-proof plan, your IP assets too need a well-planned and well-executed strategy to ensure that your brand stands out among competitors. This strategy would focus on ensuring that consumers exclusively associate your brand with your products and could encompass your copyrights, trademarks, patents or designs or a combination of these. Let’s take the example of the launch of a new range of perfume. While it would seem reasonable to soft launch the perfume on social media platforms through teaser photos and sneak peaks to pique consumer interest; from an IP perspective it would make sense to keep the product’s crucial details under wraps until you have secured definite copyright, design or trademark rights to protect it. If you release a promotional social photo or video online before you have secured IP protection, competitors are free to copy this design for their own gain, thereby negating any exclusivity you may claim. For this reason, it is a commonly accepted practice among cautious businesses to first secure registrations of related trademarks and designs and then launch their products.

A quick survey of social media platforms would show that social media accounts of brands that keep up with the ongoing trends garner a substantial amount of following that translates into unsolicited promotion of products. While it seems like a good idea to use trending music, memes and video clips in your product’s promotional content on social media, it is a risky affair since one cannot just take music, images or content from a social media feed and use it as their own, as it amounts to copyright abuse. One must exercise due care and caution before succumbing to trends, since there are specific rules (Facebook copyrights Policy, Instagram copyrights policy, etc), guidelines, and laws that govern the use of copyrighted content. Before posting content that incorporates the latest music or trend, it is important to test your content against the principles of originality and fair use.

Original content posted by businesses on their social media accounts, irrespective of who the account handler is, belongs to the business. Therefore, in order to avoid unpleasant situations where the ownership of this content is disputed, it is important to have a clear line of authority and control when it comes to handlers of social media accounts bearing the business’ or brand name, since it is nothing short of your virtual goodwill. If it is a business account with the business or brand name, then the business should own the login information and the resultant content, as opposed to the account handler.

A significant part of a business’s estimated worth lies in its intangible resources, particularly its IP. In spite of this, numerous business owners are oblivious of, or neglect to strategize and curate an IP strategy and as a result, unfortunately, their brand value suffers. Several brands have learnt the hard way that social media greatly impacts their IP strategy, causing them to altogether chart new ones. While, social media offers a unique platform to businesses to launch and promote their products or services, it isn’t as rosy as it sounds, given the volatile nature of social media, one misstep can have unprecedented ramifications. Mismanaged IP can lead to negative interactions with the consumers that can in turn create a big dent on a brand’s integrity and reputation. Whereas, positive interactions can lead to increased consumer engagement, increased revenue as well as improved recognition of your IP. Therefore, it is important to curate an IP strategy that can account for such uncertainties.  

By Adv. Aarush Gangal, From the Law Office of Lily Thomas and Saju Jakob, Advocates and Solicitors

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