Social Media Risks to Brand Protection

While social media allows brand owners to better engage with a diverse array of consumers, it also creates protection and enforcement issues. What can companies do to better protect their brand and marks in this social media age?

1. Adopt a Social Media Policy – Companies should create, maintain, and regularly update guidelines regarding employees’ use of social media. This should extend to social media use on behalf of the company as well as personal use when off duty. Many companies find they are unable to use the social media accounts associated with the brand name because employees registered them and in some cases, are no longer employed. A social media policy should cover online policies, privacy policy, trade secrets, security, diplomacy, and legal matters. Eric Schwartzman has an excellent social media policy template on his website  It is important that you educate employees to understand that the company may monitor their social media postings both at work and away from work. You may wish to add a requirement for employees to update their personal social media profiles within a specified time period once they have left your company. Company policies (and/or employment contracts and employee handbooks) should address the selection and ownership of user names and passwords and any other type of log-in information to make it company owned. This becomes especially important for employees who leave and/or are terminated. All these policy requirements should be covered in exit interviews. Most importantly, determine what corporate department is responsible for policing and enforcement of the policy. Creating a policy is useless if you have no procedure for implementing it. It is important to coordinate your social media policy with your employment law attorney to be sure you are not unintentionally targeting a protected class.


  • Consult with Trademark Counsel Early in the brand concept stage – Trademark counsel can advise whether a particular brand is available or relatively clear for your company’s use and registration before you invest goodwill and money into that brand. Trademark counsel can also weigh in on the strength of a proposed mark and its potential registrability at the state, federal or international level. The investment in legal guidance provides excellent ROI. The cost of a clearance search is less than the cost of a week’s work of employees working a marketing campaign that must be cancelled.

3. Monitor Social Media Sites for Brand Misuse – Third parties may be misusing your trademarks in a way that could confuse consumers or even threaten your intellectual property rights. This is especially the case on sites such as Amazon and eBay. Monitor and address all instances of misuse as soon as you are made aware of them. Fan sites or fan-made products to be used in conjunction with your product (e.g., an accessory for the “YOUR BRAND” widget) can be inappropriately labeled, resulting in infringement or misuse. These situations often require a delicate approach so as not to upset your fan base, on one hand, and to protect your intellectual property rights on the other. An experienced trademark attorney can provide valuable advice and strategy in these circumstances.

4. Use social media as an educational tool. Post pictures of genuine and counterfeit products to discourage the sale and purchase of knock-offs. Educating your consumers pays off in spades.

5. Familiarize Yourself with Social Media Takedown Options – Social media websites often offer online forms or ways in which to request takedown of materials that potentially infringe your copyright or trademark rights. Understanding each site’s available options will make it easier and more efficient for you to protect your intellectual property rights when the issue arise. However, public relations should not be forgotten. You’ll want to carefully consider the negative public relations that may result from aggressive enforcement of DMCA takedown policies. These efforts can backfire. The strategy of policing the mark, however, can outweigh the short term “bad guy” reputation.