It is no secret that influencers are currently at the forefront of the marketing industry. It comes as no surprise when products or services "go viral" as a result of their promotion through influencers on online platforms. Enterprises are leveraging influencers' reputations and brands to acquire goodwill in their own brands and to put the spotlight on their own product and service offerings. This means that, as an influencer, your brand and reputation is what attracts business for you, and building a strong brand, from a legal point of view, could place you in a competitive position.
You might be an influencer who exclusively markets others' products and not any of your own products. Of course, you cannot secure protection for the trade marks used on the products of third parties that you are advertising, but that does not mean that trade mark protection is irrelevant to the services you offer. To the contrary, securing protection will likely prove to be an integral building block of your brand.
As an influencer you can, and should, take steps to protect your own brand and the reputation you acquire therein, given that reliance is placed primarily on your brand and reputation to secure business opportunities. Building a strong brand will strengthen your position in the industry and distinguish your services from those of competitors. Naturally, the question arises, what can an influencer do to legally protect their brand?
An influencer should give consideration to protecting their social media "handle" as a trade mark, even if the account handle consists of the influencer's name or nickname. A social media handle often functions as a trade mark in the sense that it consists of a word, combination of words or even a name, which distinguishes the influencer's services from those of other influencers. If the account handle serves as a so-called badge of origin for the influencer's services, it should qualify for trade mark protection. This is more often than not the case. After all, the account handle is known and used by followers to search for the influencer's profile.
By way of further explanation, trade marks are registered in specific classes, depending on the nature of the goods or services on offer. Generally, marketing and advertising related services fall within the ambit of class 35. Influencer marketing, accordingly, falls within the scope of class 35 and it is crucial for an influencer to secure protection in this class.
Apart from the account handle, an influencer who uses memorable or unique words or slogans or even logos in relation to the content they create for clients, could also potentially secure protection for those words, slogans or logos in class 35.
If an influencer plans on selling their own branded goods in future, the influencer should ideally also secure protection for their brand (or for the proposed trade mark, if another product name will be used) in the relevant class. Clothing, for example, falls within the scope of class 25.
An influencer will no doubt gain a competitive advantage by way of securing trade mark protection for their brand and trade marks in relation to marketing and influencing services or even in relation to any goods of interest.
In the online milieu, and against the backdrop of the rising popularity of artificial intelligence, online infringements occur rather commonly. Influencers are often targeted by online infringers who wishes to gain a financial benefit or even their own social media following by way of misusing an influencer's brand or other trade marks. The registration of the brand or other trade marks will act as a deterrent to potential infringers. An influencer who has registered its brand or trade marks can, for example, use the ® symbol in relation to the account handle in the influencer's "bio", to inform followers, potential clients, or potential infringers of the monopoly enjoyed in the account handle which constitutes the influencer's brand.
Trade mark registration will also provide a relatively easy remedy whereby third parties can be restrained from using the influencer's account handle or a confusingly similar trade mark, in that an influencer will be able to institute infringement proceedings to address any unauthorised use of their account handle or any of its other registered trade marks in relation to the same or similar services.
It is also worth noting that an influencer can rely on its trade mark registration to file a "takedown notice" or intellectual property report on a social media platform to make the operator of the social media platform aware of, for example, an unauthorised account ("fake profile") or other infringing content, as opposed to merely reporting the account or profile. When filing a "takedown" or "intellectual property report" on a social media platform, the simultaneous submission of the trade mark registration certificate will no doubt have persuasive value when the platform has to decide whether a particular post or account should be taken down, as trade mark registration affords the influencer a prima facie exclusive right to use the trade mark.
Another advantage is that an influencer who holds statutory protection in its brand or trade marks is more likely to attract licensees. Trade marks are powerful tools that have been leveraged by celebrities and influencers as significant commercial assets to sign highly lucrative licensing deals.
An influencer should also bear in mind that original content that was created by them may be protected by copyright. Literary, musical or artistic creations, photographic works, illustrations, cinematographic works, or even sound recordings may qualify for copyright protection. Copyright exists automatically in original work that has been reduced to material format and is not necessary to register copyright.
The © symbol can be used to mark copyright works, together with the year in which the work was created and published, the name of the author and the name of the owner. The use of the © symbol once again serves to inform followers, potential clients, and potential infringers of the rights claimed in the work. An influencer could also grant a license to a third party to use his or her copyright material, in exchange for the payment of royalties.
An influencer who secures trade mark protection, and who cultivates an awareness of intellectual property at large, will no doubt send a positive message to their followers and to potential clients, reflecting confidence in their services and that he or she aims to build a brand with integrity.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
