Social media is defined as a form of electronic communication (such as websites for social networking and microblogging) through which users create online communities to share information, ideas, personal messages, and other content (such as videos)1 . While the definition may seem simple enough, the impact is far from simple. In today's highly digitized world, social media platforms such as Twitter, Facebook, YouTube, Instagram, Pinterest, LinkedIn, among many others, have become deeply entrenched in our daily lives and to a great extent, influence us.
A single social media post has the potential of starting or re-starting international revolutions. For example, the one witnessed recently in the case of the brutal death of George Floyd or more than a decade-old 'Me Too' movement started by an American activist Tarana Burke, that re-gained significant momentum only a couple of years back through social media posts. The hashtags '#Blacklivesmatter' and '#MeToo' brought together not just communities within the USA, but also across continents. This clearly depicts the reach of these platforms and the power they command.
The significance of social media is not restricted to solely highlighting social injustices or creating awareness. It is also used as an effective business tool. Its effectiveness lies in the fact that it allows and supports businesses to reach a larger consumer base, easily engaging with present and potential consumers, creating brand loyalty, and increasing sales. Social media has a benefit over traditional media because it can get one's brand in front of people much more quickly. Furthermore, it gets one's audience looking at their brand continuously. 2 Thus, today, be it individuals or businesses, big or small, all have either tapped into the power and potential of the social media platforms or are finding the best way to jump onto the bandwagon.
In recent years, several successful social media campaigns have been launched which caught the attention of the consumers and for the relevant brands, hugely contributed to increasing brand awareness and possibly, brand loyalty. These campaigns are creative and coordinated marketing efforts to reinforce or assist a business goal using one or more social media platforms and are essentially different from everyday social media usage because of their increased focus, targeting, and measurability.3 With discussion surrounding gender equality reaching its peak, Proctor & Gamble's Ariel India launched its awardwinning 'Share the Load' campaign in 2015, which quickly struck a chord with the consumers across demographics. This social media campaign, which was accompanied with a heart touching video, raked in millions of views and successfully brought attention to a problem plaguing our society, and at the same time also amassed favorable reviews for the brand itself. Another noteworthy campaign was Dove's 'SelfEsteem' campaign, which was launched around 15 years ago and has been widely promoted on social media platforms since then, encouraging consumers to highlight and show off their inner beauty. This campaign by Dove has been appreciated across the globe as it is aimed at breaking stereotypes usually associated with a woman's appearance as well as bringing phrases like self-esteem and self-love in the world of beauty and cosmetic industry related marketing, generally. It went on to become much more than just a promotional campaign and was tremendously applauded as a corporate-cum-social mission of the brand. These examples of creative branding efforts speak volumes about the power, impact, and outreach of social media promotion.
While the boons of social media promotions are manifold, they are not without their own set of pitfalls. This article makes an attempt to highlight the two sides of the coin in the context of brand building and promotion, while trying to caution the readers regarding the perils of social media promotion.
2. KEY TRENDS
The constant use of social media has resulted in a paradigm shift in the way individuals and companies alike promote themselves and build their brands. Previously, companies would put out advertisements for television and radio, circulate pamphlets, use hoardings, and while these methods are still relied upon, a huge focus has shifted onto social media promotions. While the media for promotions and business development may be constantly evolving, the intellectual property ("IP") landscape is also simultaneously changing to cater to this fast-changing landscape.
Today, businesses have taken serious note of the fact that at the center of a successful business empire lies their IP and brand value. This is evidenced from the efforts businesses undertake in creating, protecting as well as promoting their IP. As highlighted above, creative social media campaigns containing unique content are crafted and implemented over the course of several rounds to have an effective brand recall and value. Additionally, these social media campaigns usually contain catchy expressions (or taglines), in addition to brand names themselves, used in the form of hashtags to connect with the desired goals. Every social media campaign of Nike runs with their eponymous tagline "Just Do It" as hashtag '#JustDoIt' and serves as a crucial brand identifier along with the name Nike as hashtag '#nike'. Similarly, Surf Excel's popular tagline "Daag Acche Hain" as '#DaagAchcheHain' has been a part of every social media promotion by Unilever for the brand Surf Excel.
Another common tool employed by companies in promoting their brands online is promotions by engaging vloggers and social media influencers in their social media campaigns. Owing to the fact that these vloggers and influencers go on to become celebrated social media personalities and have significant 'fans' and 'followers', companies try to widen the scope of their promotion by utilizing the brand value associated with these influencers.
While these tools assist companies in strengthening their brand image, there may be some instances where employing these strategies have backfired and resulted in IP issues. Some of these situations are discussed here below:
2.1. Hashtags as trademarks
A hashtag is written within a post or comment on social media to highlight the post or comment and facilitate its easy indexing under a trending subject.4
Hashtags containing brand names are identified as the property of the brand owners. These are usually referred to as brand or branded hashtags. Examples of popular branded hashtags are '#cokecanpics' and '#smilewithacoke'. Owing to their importance and in order to prevent their misuse, brand owners seek trademark protection for branded hashtags. Branded hashtags can be easily protected through trademark, as they fulfill the primary criterion of distinguishing the goods or services of one person from another person, that is, they serve as source identifiers for the brand. Even the use of a branded hashtag in a competitor's social media posts may be welcomed by the brand owner (unless it is used in a misleading or disparaging manner), as eventually users clicking on the branded hashtag would lead them to the brand owner's posts, thereby increasing promotion for the brand owner's posts or services.
There have been several cases where branded hashtags have been successfully utilized by companies to promote their brands. Few of these cases have been discussed below:
- Zomato: The food delivery aggregator popularly uses '#ZomatoIN'. In one instance, the company was tagged on Twitter by using the said hashtag, wherein a customer had refused his order because it was delivered by a non-Hindu. In response, Zomato issued the following statement: "Food doesn't have a religion. Food is a religion", while using '#ZomatoIN' in their posts. Though the social media was divided over the stand taken by Zomato, this statement resulted in the hashtag '#ZomatoIN' trending for the next couple of days, and also any search of Zomato would pull up their above-mentioned stance and further strengthening their brand image on the whole.
- Nike and Colin Kaepernick: In an interesting case, Nike collaborated with Colin Kaepernick, a famous player from the National Football League ("NFL"), to celebrate the 30th anniversary of their eponymous tagline "Just Do It". This tagline has been trademarked across various jurisdictions and serves as an essential brand identifier for Nike. In the last few decades, they have undertaken several brand promotion activities, but none have created a greater buzz than the one done in collaboration with the famous Kaepernick. As part of the collaboration, Kaepernick posted a tweet stating "Believe in something, even if it means sacrificing everything" followed by '#JustDoIt'. This one tweet created a furor across various sections in the USA. At that time, Kaepernick was in the middle of a maelstrom, as he had refused to stand during the playing of the American national anthem at the 2018-19 NFL Playoffs and rather took to his knee as a symbol of protest against racial injustices. Many touted that this collaboration between Nike and Kaepernick would sound the death knell for the brand. While there were many retractors, this move by the brand eventually won them supporters as well and eventually resulted in boosting the sales of the brand.5
The above instances highlight the effective use of a hashtag in ensuring that companies can improve their brand visibility while simultaneously strengthening their IP. While these stories may indicate that life is all hunky-dory in the world of hashtags of companies, there nonetheless exist some challenges for companies and their IP assets.
2 Brady Ducart, CoSchedule Blog, available at https://coschedule.com/blog/benefits-of-social-media-marketing-forbusiness/
3 Definition as per Bigcommerce.com
4 Tali Marks, "What Are Hashtags And How to Use Them On Social Media", Wix Blog, Available at: https://www.wix.com/blog/2018/02/what-are-hashtags-and-how-to-use-them-in-social-media
5 Mark Medina, "Warriors' Steve Kerr: Colin Kaepernick will 'ultimately be considered a hero' for protesting racial injustice"; USA Today (9/06/2020); Available at: https://www.usatoday.com/story/sports/nba/warriors/2020/06/09/steve-kerr-sayscolin-kaepernick-ultimately-considered-hero/5331074002/
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