28 legal eye
september 2014
www.ragtrader.com.au
PRESENTED BY
The laws
K&L Gates’ Lisa Egan and Caroline Judd
tackle your pressing legal questions.
of being social
Dear K&L Gates Agony Aunt,
I have set up my business with the best structure
to suit my needs. I have great systems in place
and now I want to establish a social media presence. What tips and tricks should I be aware of
in this space?
– MyFirstTweet
Dear MyFirstTweet,
Thinking about a social media plan for your
business is critical to allow your customers to
immediately connect with your business across
a variety of platforms. There are many different
platforms available, each with their own benefits and purposes. Below are my tips for navigating social media sites Facebook and Twitter.
Social media
Businesses need to consider promoting their
brands online from an early stage. As a first
step, you should register your brand name as
a trade mark to stop others from using your
name, or a similar name, in relation to goods
and services similar to those which your busi-
Twitter has terms of
service that set out user
rights and obligations.
ness offers. Having a registered trade mark
will also make it much easier to enforce your
rights in your brand online.
You should consider registering social media accounts that include your brand name,
even if you have no immediate intention to
start using these accounts. This will stop others from registering these accounts before you
and taking advantage of the reputation you
have (or will soon have) in your brand name.
Facebook
According to research conducted by technology provider NewVoiceMedia, Facebook has become Australia’s favourite social
network site for interacting with businesses,
for both positive and negative customer service experiences.
It is important to know that it is assumed
that you own all content posted on Facebook,
so make sure you only post content that is
yours or that you have a right to use. However, by signing up to Facebook and agreeing
to its terms and conditions, you provide Facebook with a licence to use any
content protected by intellectual
property (IP) rights (ie photos),
subject to your privacy and application settings, until your account is deleted.
If you find that someone is
infringing your trade mark or
copyright work on Facebook,
you are able to submit an IP infringement notice to Facebook,
and Facebook will promptly
remove or disable access to the
content in question. The wrongful use of your trade mark includes another trader using your trade mark
(or a similar mark) to identify themselves as
the source of goods and services similar to
those offered by you in relation to the trade
mark. This will be easier to establish where
you are able to point to a registered trade
mark for your brand name. The wrongful
use of a copyright work belonging to you includes the use of a photo taken by you.
Facebook has comprehensive policies governing the use of IP at the site, plus rules on
what Page names are available to users. For ex-
ample, Page names cannot include generic location names (ie Burgundy Wine) or misleading
words (ie use of ‘official’ for a site that is not).
Facebook’s policies may change from time
to time, so it is important to read up on the information available at the site to know where
you stand as a Facebook user.
Twitter
Twitter is another useful way of connecting with customers, sharing with them succinct information that resonates with your
brand, and letting them know about special
offers, sales etc.
Twitter is also often used for parody or fan
accounts. Twitter allows these accounts provided it is clear that they are not official accounts of the brand itself, and use words like
‘fake’ or ‘fan’ in the subject of the account.
Your brand could, therefore, be the subject of
a parody account and there is not a lot you
can do to stop that, provided it is clear that it
is not an official account.
Twitter may, however, suspend an account
if that account is being operated with the
clear intent to mislead others through the
unauthorised use of a trade mark. If an account is confusing, Twitter will give the account holder an opportunity to clear up any
potential confusion.
Twitter has terms of service that set out
user rights and obligations, which may be
updated from time to time. Importantly,
Twitter requires proof of a registered trade
mark to prevent another user from ‘squatting’ on an account name that includes a
trade mark before removing that account. If
an account name is close to a registered trade
mark, but does not associate itself with the
owner of the trade mark, Twitter will not remove the account.
As noted at the outset, the first step is to
make sure you have your trade mark registered to arm yourself to make the best use of
social media and to ensure you can stop others
taking a free ride. ■
For legal advice about protecting your brand online
contact Lisa Egan, Partner, K&L Gates or Caroline Judd,
Senior Associate, K&L Gates – 03 9205 2000; lisa.
egan@klgates.com, caroline.judd@klgates.com.