Trademarks are an early form of reputation management. Time was, you couldn’t hop onto Yelp, look up a person’s eBay score or glance over their review history on Amazon. When you were handed a sword to defend hearth and home, you’d know from the mark of the smith if it were a solid and sturdy weapon or a heap of junk. The reputation of the smithy would follow the weapon.

The purpose of the trademark is to clearly identify the source of an item. It’s a way of solidifying a reputation behind a single name, logo or design. When you see the word Ford at the front of car with the iconic blue oval (disclosure, we have been Ford Motor Company’s social media agency since 2007), you know that carries with it more than 100 years of reputation that Ford has earned. When you fire up a laptop and the Apple logo lights up, you know that this isn’t a machine hacked together in a garage from discount parts but a specific vision of Steve Jobs and his company. When you crack open a bottle with the distinctive shape and words Coca-Cola emblazoned on the side, you know just what taste to expect.

The trademark is a protection for the company, but it’s also a protection for the consumer. If I’m picking up a tub of ice cream from the dairy case, I don’t have to worry that they’ve slapped a Ben & Jerry’s logo onto a tub of cheap stuff full of artificial flavors and unpronounceable ingredients. I’m freed from having to distinguish if this ice cream is actually Ben & Jerry’s based out of Vermont or if it’s Benn & Jerries based out of the back alley, because trademark law prevents the grocery from doing this without serious consequences.

We believe Social Media Group stands for something: the collective knowledge, wisdom and experience our team brings to the table, the quality of work we deliver and the results we bring to our clients. We think that’s a reputation worth protecting, which is why very early on we filed for protection of the name under trademark laws. When you hear the name Social Media Group, you will know that none other than us did the work.

So we all know the story. Imagine, a group of faithful enthusiasts fall in love withSuper-Duper Brand (for the purposes of this illustration I’m using a fictitious name). They start a forum at superduperrocks.com, the maintenance of which they cover by selling superduperrocks t-shirts and other merchandise. A lawyer for Super Duper stumbles upon the site and fires off a standard cease and desist letter to attend to the trademark infringement.

The community freaks out, both in terror of what a visit to court may cost and in anger of being turned on by the brand they adored and revered. The pundits point a spotlight on the issue and chuckle over what a stumble, what a gaffe, “who could possibly be foolish enough to attack your greatest evangelists?” Those who rail against the new media tools will waggle their fingers and declare, “These interwebs will doom us all.” Those who rail against intellectual property will hold it up as a case study of why the protections are outmoded and should be abolished and information set free. If they’re at the wheel, the company’s communications team is going into overdrive and doing their best to undo the damage and resolve things without sending legal into fanatics. So, it’s a general mess all around.

The lawyer wasn’t wrong in identifying a threat. The fans were infringing upon theSuper-Duper Brand trademark. They were not harming the company, quite the opposite, but still they were creating a legal risk. When the day comes that a cheap knock-off operating under the name Sooper-Dooper Brand arises, these new competitors will rightfully be able to point to the lack of action with all the other infringements as proof the name was not of value.

So the trademark is important and must be defended. And obviously, brand enthusiasts are important and shouldn’t feel attacked.

As with many things in social media, Communication is the answer:

  • Have you considered your enthusiast groups and set out clear guidelines of where the line gets drawn in terms of trademark usage?
  • Have you been monitoring your brand – a service which, I would be remiss for not mentioning, we offer to our clients – and are you ready to step in with a gentle warning when a usage crosses from enthusiasm to infringement?
  • Are you providing your gentle warning on day one of their new community or are you stepping in at the final hour of a giant project with a big ‘No can do‘?
  • Have your company’s communications and legal teams sat together to work out where these notices best originate and what’s required by law without sounding like the recipient is about to be dragged to court and their first born seized?

There will, however, be those who seek to line their own pockets on the strength of the reputation you’ve built. This includes the miscreants that intend to confuse customers into thinking their wares are from a more reliable source and the leeches who hope to ride on the goodwill another company or group has worked so very hard to build. Most often these folks scurry for cover when attention is swung their way, but it’s not uncommon for one or two to kick up a fuss and cry the role of victim, beset upon by the savage faceless corporation.

Communication, again, is your best defense:

  • Do you have social channels available to communicate your position?
  • Have you established a record of being communicative and fair dealing?
  • Have your company’s communications and legal teams come up with a better response than the standard ‘no  comment’‘?

If you are open and communicative to your customers and partners, the audience will seek your response before judging and your brand advocates will step forth to your defence. Few will bemoan the fate of someone who is a cheat or a second-hander and your hand may be as heavy as it needs to be.

Slamming down an infringer who is trying to trade off of your good name is an easy decision. Less easy is the infringer who does so out of ignorance. Someone may either think their name was different enough that it would not be an issue or they may not even realize that you exist. As small and medium sized businesses extend their reach beyond their local geographies through the net, this is bound to happen more frequently. And while you have to give a tip of the cap to the other party for having the same good taste that you had in choosing a name, you have to deduct points for not having the sense to run a simple Google search to ensure no one else had the idea first.

Informing someone who has invested time and energy into developing a fledgling brand that they have made a horrible misstep in their naming – it’s hard not to seem the bully in this case. But if you are the one holding the trademark then youmust enforce or abandon it.

  • Always begin with the assumption that no malice was intended – let their reactions to reasonable demands guide how heavy handed you go.
  • Be as flexible as you can, but firm in asserting your rights. When O’Reilly asserted their trademark for Web2.0 in relation to conferences and seminars, they didn’t insist on a sudden name change, but simply insisted on a written agreement that the following year’s event would fall under a different name.
  • If possible, communicate directly. The letterhead from a lawyer and the tone of a standard cease and desist puts most people immediately into a fight or flight response. This is where the ‘human tone of voice‘ that is greatly vaunted in social media can serve you well.

And of course the most important step to avoid the perception of being a bully is toNOT be one.

  • Don’t go on a campaign to assume complete ownership of a word from the dictionary.
  • Don’t be unreasonable and inflexible in your demands.
  • Use the law as a shield not as a club.

in future articles I'll explain why swhirlies and atomic wedgies are not the best response to copyright infringement
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Note IANAL: I am not a lawyer and this post should not be considered a replacement for proper legal advice. I don’t suppose there are any members of the legal community who would care to step forth and critique the above or offer further illumination into dealing with matters of trademarks?

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