The rise of social media has not only transformed the way individuals interact, but it has also significantly altered commerce, marketing, and the protection of intellectual property rights. With this transformation, new challenges have emerged for IP rights holders, as well as new opportunities for those who can leverage social media effectively. Brand protection in this new era involves multiple facets: legislation that adapts to the times, cooperation between brand owners and social media platforms, and the role of so-called "influencers" in supporting legitimate brands against counterfeiting.
Legislative Action and Challenges
Lawmakers face increasing difficulty keeping pace with the rapid evolution of social media and changing user behavior. The EU Digital Services Act aims to streamline online enforcement by holding social media platforms accountable for hosting illegal content and marketing counterfeit goods. Meanwhile, the US's SHOP SAFE Act shifts liability to e-commerce sites, though its vague definitions can create challenges for brand owners, sellers, and customers. China has its own trademark protection regulations, while social media platforms also have internal policies to support brand protection efforts.
Existing and Emerging Risks for Trademark Protection on Social Media
Brand owners must understand the tools and techniques used by infringers on social media to properly assess threats and formulate a comprehensive online brand protection strategy. Social media can be a profitable avenue for brands, allowing them to maintain an online presence, protect their reputation, and safeguard their intellectual property rights—all while preserving customer loyalty and market share.
According to INTA officials, who support brand owners in the fight against counterfeiting, community engagement is crucial for success. However, challenges remain, especially regarding private messaging and closed groups, where monitoring could raise privacy concerns. Social media platforms must navigate these issues carefully to avoid alienating their user base.
Counterfeiters are adopting increasingly sophisticated tactics, including creating impostor websites, posting misleading advertisements, utilizing deepfakes, and fabricating fake conversations. Raising customer awareness is crucial in combating counterfeit goods on social media. European IP regulators have noted the concerning impact of social media influencers on the trade in counterfeit goods. Many influencers fail to disclose advertising content, and studies find that women are less likely than men to purchase counterfeit goods based on influencer marketing. Although influencers can be complicit in promoting counterfeit products, they can also play a role in brand protection and promotion when engaged strategically.
Collaboration Opportunities on Social Media
Combating counterfeiters on social media platforms involves cooperation between brand owners and platform enforcement structures. This cooperation can range from simple reporting procedures to takedown mechanisms and even joint lawsuits, where both the platform and brand owners take legal action against counterfeiters.
Collaboration with influencers often involves complex negotiations around royalty rights, contractual obligations, and termination rights. Influencers frequently build their own brands in parallel with the brands they promote, which can complicate matters. In some cases, collaborating with influencers may prove too costly or burdensome, in which case brands should consider refraining from such partnerships.
Social media messaging can significantly impact brand reputation, underscoring the importance of timely and accurate responses. Brands must be proactive in addressing issues and managing their online presence to protect their reputation effectively.
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