How Can You Defend Against Claims of Trademark Infringement on Social Media?
Social media platforms offer countless opportunities for businesses to reach customers and elevate their brand presence.
However, with opportunity comes risk. Trademark infringement claims on social media have become a significant issue for businesses.
Whether it's the unauthorized use of a logo, product name, or slogan, such claims can put companies in hot water and even jeopardize their success.
At the Law Offices of David H. Schwartz, INC., Attorney David Schwartz has represented California businesses in trademark disputes and complicated litigation for over 45 years.
He helps clients in the San Francisco Bay Area, San Jose, Santa Clara, San Mateo, Alameda County, and Oakland resolve legal challenges with a strategic and results-driven approach.
Businesses seeking practical, effective defense strategies against trademark infringement claims rely on his extensive legal experience and deep understanding of California business laws.
If you are facing trademark claims or are concerned about potential infringement on social media, Attorney David Schwartz is here to protect your business interests and reputation.
What is Trademark Infringement on Social Media?
A trademark protects brand elements that uniquely identify a company, such as its name, logo, slogan, or other distinguishing aspects.
Trademark infringement occurs when another party uses a trademarked element without authorization in a way that could confuse consumers about the origin or endorsement of goods or services.
On social media, claims of trademark infringement often arise from:
Using someone else’s logo or brand name in posts, ads, or hashtags.
Selling counterfeit goods or misrepresenting products under another company’s brand.
Impersonating a trademarked business or individual.
Running ads with content that is deceptively similar to a competitor’s branding.
Trademark infringement is not always straightforward. For example, referring to trademarked terms in a review, parody, or educational way may not constitute infringement.
However, as social media is a public domain where content spreads quickly, even minor missteps can have legal consequences.
Trademark Laws in California
California follows federal laws under the Lanham Act, but has state-level protections that govern trademark rights in specific cases:
California Business and Professions Code: This allows businesses to sue under unfair competition laws when a trademark infringement creates consumer confusion or damages a company’s reputation.
California common law: Under this law, unregistered trademarks still hold legal rights if the company can demonstrate that customers associate the trademark with their brand.
California state trademarks: Businesses registered under California state trademarks gain protections in situations where federal trademark laws do not cover them.
Defenses Against Trademark Infringement Claims
Several defense strategies can be employed against accusations of trademark infringement on social media, depending on the specifics of the situation.
An experienced business attorney is critical to determining the most effective course of action. Below are some common defenses:
Your Use is a Fair Use
Fair use is one of the primary defenses against trademark infringement claims. Examples include using a brand name descriptively instead of as a trademark or referencing a company in commentary, criticism, or satire without intending to confuse consumers.
For instance, a social media critic discussing a trademarked product in a non-commercial context may not be liable for infringement.
No Likelihood of Confusion
For a claim to hold, the plaintiff must prove that your use of their trademark is likely to confuse the average consumer about the source of the goods or services.
If your content clearly distinguishes itself and avoids creating confusion, you may be able to refute the claim.
The Trademark is Generic or Descriptive
Some trademarks may lose their distinctiveness over time. If the plaintiff’s trademark has become generic (e.g., "escalator" once being a trademark) or is merely descriptive (lacking any distinctive quality), their claim may not hold in court.
You Hold Prior Use Rights
If your business used the trademarked term or logo in your branding before the plaintiff registered it, you might hold priority usage rights. Documented proof of prior use can serve as an important defense.
First Amendment Protection
Social media content often straddles the line between advertisement and speech. Parody, art, criticism, or commentary involving a trademark could potentially qualify for protection under the First Amendment.
Class of Goods Argument
If the goods and services offered by both parties are vastly different, confusion may be unlikely. For example, a bakery and a tech start-up using identical brand names are less likely to infringe upon each other’s trademarks.
Reducing the Risk of Trademark Claims on Social Media
Being proactive is often the best defense when operating a business with an active social media presence. Here are practical steps businesses can take to reduce the risk of trademark infringement:
Conduct trademark research: Before using visuals, names, or hashtags, ensure they do not infringe on trademarks of existing brands.
Secure your trademarks: Register your business’s distinctive assets as trademarks both federally and within California.
Establish social media guidelines: Develop compliance protocols for your social media team to follow when creating promotional content. Training employees on trademark and intellectual property laws is critical.
Monitor your content: Regularly review your social media channels, including user-generated content, to avoid unauthorized use of others' intellectual property.
Respond quickly to concerns: If a trademark owner reaches out to resolve a perceived infringement, collaborate promptly and resolve the issue to avoid escalating it into a lawsuit.
Business Litigation Attorney Serving the San Francisco Bay Area
The Law Offices of David H. Schwartz, INC., has nearly five decades of legal experience protecting and defending California businesses involved in complex litigation. Attorney David Schwartz handles cases involving trade secrets, trademark infringement claims on social media, business disputes, shareholder actions, and Civil RICO claims.
His legal strategies are intuitive and tailored for businesses in San Francisco, Oakland, San Jose, Alameda County, Santa Clara, San Mateo, and the Bay Area.