More and more often these days I receive enquiries from people who have come across someone else using ‘their’ brand as their Facebook page name. I can honestly say that I have answered queries and helped in about a dozen cases like this in the past year or so.
I am not sure why it is, but my experience has found that people are more emotional when they find their name being used by someone else on Facebook – more so than when they come across a similar name in the marketplace or any other medium. Unfortunately though, this emotion often leads to hasty action. If you feel that your brand has been hijacked online, there are certain things that should be kept in mind if you do come across someone using your brand name as a social media ID or page name:
Do not post on the person’s page or account making any reference to them using your name without permission! Seek professional advice, as rights and options will vary from case to case.
More often than not by the time I am asked about a person’s rights in these situations they have already made a comment at the person or business page or account that tells them they aren’t allowed to use the particular ‘brand’ name. Or, a complaint has been filed with the Social Media site operators about a breach of trademark rights. There is more to it than this!
The following questions at least should be asked before any comment is posted or action of any kind is threatened against someone using your name in this way:
- Do you have a registered trademark on your brand name? If not, then merely having a business or company registered will not necessarily give you the right to stop someone from using the same name;
- What industry is the other person in? Trademarks, and most other methods of ‘stopping’ similar names being used are dependent on whether the other person provides the same sorts of products and/or services as yourself. If they are in an unrelated industry you may not have the right to stop them;
- Where are the others located? Trademark registration is country-by-country and general trading laws are country-by-country. Unless you have a particularly well known international brand, chances are you will not have the right to stop someone in another country from using the same brand name as you. Not to mention, they may also have trademark registration in their country which gives them the right to use that name in that country.
Also be mindful that in some countries, including Australia, it is prohibited to threaten any action concerning trademark infringement and breach of trademark rights if you don’t have the trademark registered. This is a groundless threat and the person you make the threat against could actually take you to court for the making of the groundless threat. Whilst you may ‘scare’ some people into stopping use of the same/similar name by posting on the Facebook walls or Tweeting at them, this could have an expensive and painful repercussion to you and your business.
So what should you do if you come across someone using your Brand as their User ID?
Firstly, ask the above questions and try and answer them. If you do not have trademark registration but the other person is in the same business type and is located in Australia then there may still be options – but, it is not appropriate to post any public content. Seek Professional Advice to determine the best way forwards.
If the other person is not in Australia – determine where they are located. Do you have trademark registration in that particular country? If not, then it could be possible to take action if they are making some sort of representation that they are in fact affiliated with your business when they’re not. If this doesn’t apply, then chances are there’s nothing you can do about it except register your trademark in Australia to be sure you at least have the right to use and promote your brand here. If you can demonstrate they are misleading people into believing a relationship exists with your business, then seek professional advice to determine the best way forwards.
If you have registered your brand as a trademark, the other people are in Australia and they are selling similar goods and services, then you may be within your rights to issue a letter of demand, known as a cease and desist letter to stop them using the name that is an infringement of your trademark. If you get to this stage, and feel that all the boxes are ticked and it’s appropriate to proceed, then again seek professional advice. There are certain circumstances that Australian trademark law sets out that are not infringing activity. It’s crucial to ensure that you are within your rights to send such a letter before doing so. We recently posted on the subject of trademark infringement, which may further assist you in determining whether your rights are being breached by another party.
Need more information? Visit our website or email email@example.com for prompt and professional advice concerning your trademark infringement matters.