Protecting Intellectual Property in Social Commerce

The Internet and e-commerce are becoming the standard mode of business in today’s global economy.  The current projection is that e-commerce in 2011 will account for 188 billion dollars with a hundred billion dollars in growth being projected by 2015 as a result of mobile commerce, social commerce and daily deal sites, like GROUPON.  As the social media world continues to displace more traditional forms of advertising, it is becoming more and more important for companies to monitor, evaluate and enforce their intellectual property (IP) including trademark and copyright concerns.  Today some of the largest vehicles for commerce involve the Internet and include EBAY, FACEBOOK and GOOGLE.  In addition, promotion of products involves other electronic media sites like TWITTER, YOUTUBE and various blogs.  Each of these non-traditional modes of commerce are frought with potential illegitmate use of intellectual property, including:

• Trademark infringement, including the non-authorized use of a companies name, slogan, brand names and logos in connection with the sale of competing goods or services;
• Copyright infringement, including the non-authorized use of text, graphics, images, sounds and recorded video materials;
• Unlawful counterfeit or knock-off products which copy the companies protected product,
• Invasion of Privacy or Publicity by posting non-authorized images of a person;
• Defamation, such as slander or libel for making false public statements about a person on the Internet; and
• Breach of Confidentiality by disclosing confidential information such as trade secrets to others.

Protecting your Intellectual Property

The first step to curbing the theft of intellectual property begins with protection and notifying the world of your legal claim.  Protecting your intellectual property involves registering it with a governmental organization, either at the local or national level and usually involves some form of legal advise in deciding how to register the work.  Whether a company chooses to register its trademark/service mark or copyrights, it should still notify everyone of its claim to protection under trademark or copyright laws by using an appropriate notice of its claim to its intellectual property in connection with its copyright or trademark materials.  In some cases, this may involve the use of a superscript TM, in other cases it may involve the use of the © designation or in other cases the ® designation.  Before deciding which of these notices to use, you should contact an attorney to advise you, but in any event, you should properly mark your trademark and copyrighted material with the appropriate legal designation.

Monitoring your Intellectual Property

Once you have protected the mark or work and properly placed the appropriate notice on the work, you should develop a plan for detecting and monitoring any unauthorized trademark, copyright and trade secret activity.  You should begin by developing a reasonable policy and educating internal users about the appropriate usage of the company’s intellectual property, its name, materials, brands and confidential information.   The volume of postings and other electronic messages sent using social media can be overwhelming.  Some people post over 200 messages a day on Facebook.  Because of all of the social media activity, it can be difficult to keep pace with potential violators.   In addition, infringing copies of copyrighted works can be unlawfully accessed and shared by thousands, or even millions, of Internet users in a given day.  But not all infringements are equal. For example, some YouTube video’s have a short life, watched by only a few people before being superseded or buried by more recent postings. Some videos or blog postings, however, are very influential or are read by many people and are therefore more problematic or urgent. In some cases, a post a wide following may be viewed many times or is otherwise influential. In other cases, a posting may be linked or forwarded to others.   Therefore, it is important to set up a reasonable, rationale plan to educate and monitor intellectual property violations.

Creating a Company Branded Site

In addition to policing against unlawful violations, the company should set up its official Internet accounts.  Besides an official company website, many companies need to create official Facebook, Twitter, Ebay and Google accounts using the company name or generally recognized brand names.  Once created, only authorized individuals should be able to access these accounts and post messages, pictures or blogs.  It is recommended that there should be some accountability to who has the responsibility and permission to post information on the Internet with multiple people monitoring the ongoing Internet activities.  One way to monitor for various activities would be to set-up a daily Google alert or subscribe to commercial watching services related to various keywords relevant to the company’s name or other intellectual property concerns.

Recording Infringement Activities

Monitoring violations of IP rights should include the ability to recording information about the unlawful activity or the dissemination of the unlawful material.  This information may be critical to demonstrating the harm and potential damage caused by the unlawful activity.  Because the social media consciousness is fleeting, any evidence of unlawful activity may be lost in a relatively short time, making it difficult to recover from the inflicted harm.  Without evidence, it can be difficult to prove that any unlawful activity actually took place or that if it did, that there was any real impact as a result of the unlawful activity.  Therefore, it is important that a policy for monitoring infringement activity include the ability to record and preserve evidence of any wrongdoing which can, if needed, be proven at trial if a suit is brought to stop the unlawful activity.

Conclusion

Protecting, monitoring and enforcing intellectual property rights against infringement might seem impossible; However, with the proper development and implementation of a strategy against infringements, an companies intellectual property asset can continue to grow and prosper in today’s e-commerce world.

As a follow-up to the recent Tattoo article, on Monday, Warner Bros. announced that it had settled the lawsuit brought by Missouri tattoo artist S. Victor Whitmill over the mark on Helms’ face, for which Whitmill claimed infringed a copyrighted tattoo he created for boxer Mike Tyson.  Terms of the settlement were not disclosed.