Australia: Intellectual Property Update - What can brand owners do to protect their rights online?
Web 2.0, intellectual property and social networking sites

Web 2.0, intellectual property and social networking sites - what can brand owners do to protect their rights online?

Facebook, Twitter and MySpace are extremely popular social networking sites that have opened exciting new marketing channels for businesses to promote their goods and services. While many brand owners are seeking to develop their online presence given the huge marketing potential for businesses, brand owners should be aware of the intellectual property issues that can adversely impact their business interests and activities. Brand owners should put measures in place that ensure their intellectual property is not misused by unauthorised parties and they are protected from potential litigation. In this article we look at some of the intellectual property issues associated with different social media sites.

Facebook

All brand owners should carefully consider Facebook's terms and conditions prior to promoting their brand on this network. The website's terms and conditions effectively provide Facebook with an implied licence to exploit other people's intellectual property.

Earlier this year, Facebook extended its right to use any content uploaded by its members, even after the content and the entire profile had been deleted. Though this is no longer the case following public outcry, the wording of the website's terms remains so broad that it could be argued that Facebook retains its implied licence to use its members' intellectual property however and whenever it wants.

The fact that the terms of the licence are so broad can have serious consequences for owners of intellectual property. Facebook could potentially use brand owner's trade marks in any way it wishes, and could go so far as to start offering forms of intellectual property such as software for sale, leaving the original intellectual property owner with little or no recourse. In addition to the broad licence Facebook acquires from its members, privacy issues are also of concern. Google also has a similar contract that users must agree to before being permitted to use its services.

Before simply clicking the "I agree" button on the terms and conditions, brand owners should carefully review the terms to ensure they are fully informed of what rights they are giving up.

Corporate blogs

Corporate blogs have become a significant marketing tool for businesses looking to reinforce their brand personality in the online community. It is easy to overlook the legal implications and in particular, the intellectual property issues that may arise. Many bloggers choose to illustrate their contribution to the blog by representing the trade mark logo in a way that may be classified as misuse of a trade mark. While trade mark owners are unlikely to take action if a site is showing support for their brand, in circumstances where harm may be caused to the brand through derogatory comments or where the logo is misrepresented, a brand owner may want to take action to enforce its copyright and trade mark rights.

The truth is, the minute an image or logo is published on the internet, it is open to misuse by others. Brand owners should take steps to make it clear that any use of their brand on a particular website has been authorised by them.

Brand owners should carefully monitor the use of their brand on the internet and take action against parties that infringe their rights, to reinforce that they are serious about protecting their intellectual property rights.

Buying and selling through social networking sites

It has been said that social networking sites that allow money to be transferred between parties are likely to present the most danger to brand owners. This is because in most cases, the brand is used without obtaining the permission of the owner and the use can potentially weaken the brand, causing commercial damage or loss to a business.

While intellectual property laws in Australia apply in the "real" and "online" world, online infringers are much more difficult to identify and catch due to their ability to conceal their true identities or whereabouts.

In the future, operators of websites that provide the platforms for trademark and copyright infringing activities to occur may be liable for policing their websites. While there is currently little or no case law in Australia that establishes guidelines in respect of these issues in the online environment, courts are likely to take as stringent an approach to the misuse of intellectual property rights on the internet as they do in the real world.

So what should I do to protect my intellectual property rights?

• Carefully review the terms of every contract on social networking sites prior to posting information about your business on the site
• Take steps to ensure it is clear that any use of your brand on a particular website has been authorised by the owner of the website. This may assist in deterring other parties from using the brand without permission
• Be proactive in taking action against parties who infringe your intellectual property
• Monitor websites and blogs where your brand may be being used and take steps to stop any unauthorised and inappropriate use of the brand.

This publication is provided to clients and correspondents for their information on a complimentary basis. The information provided is a general guide only and Gadens Lawyers accept no responsibility for people relying on this publication.

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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.