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John B.
Farmer

 

Lawrence E. Laubscher, Jr.

 

Ian D. Titley

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How to Deal with Businesses with Similar Names on Social Media

Wednesday, February 22nd, 2017

Impersonation on social media can be funny, unless you’re the target.

Speaking of Target, that company got humorously spoofed on Facebook.

In 2015, Target announced all store signage would omit gender references, such as “boy’s clothes” and “girl’s toys.” Many consumers complained on Facebook about political correctness.

Having fun with that, someone registered a Facebook account that featured the famous Target logo and the screen name “Ask For Help.” It looked like Target customer service.

The impersonator replied to Facebook complaints about the Target policy, satirically mocking complainers.

Someone posted on Facebook that she bought a bicycle at Walmart instead, to protest. The Facebook faker responded “We’re sorry to hear that. Good luck with your new relationship with Walmart. Be careful, we hear they sell bikes without seats on them.”

When a couple posted a complaint from a shared Facebook account, the faker responded “We at Target just want to say that we’re totally against couples having one Facebook account. It is ridiculous and just wrong. We will be adding you to the ‘cannot shop here’ list.”

Reportedly, the faker got away with it for about 16 hours before Facebook shut it down.

Hopefully your business won’t be the target of such political tennis on social media. But what can you do if another company shows up on social media with a name and line of business that is confusingly similar to yours? In legal speak, what can you do to stop trademark infringement on social media?

Start with the name of your business. It needs to have a name unique in its field, and the name must not be descriptive or generic for its type of business. If you call your business “Acme Plumbing” or “Import Car Repair Shop,” you won’t stop others from using that name.

Next, federally register the name of your business as a trademark. Every major social media site has a process to receive trademark-infringement complaints, and they each ask whether your mark is federally registered. Hypothetically, some social media sites might help you without a federal trademark registration, but that’s highly unlikely.

The best defense is a good offense. Get your business on that social media site. Register the username that matches your business name before someone else gets it. While that won’t stop others from getting similar usernames, most Internet users are savvy at discerning which business is the one they are looking for.

If you find a trademark infringer – a business using a similar name for the same or a similar line of business –first address your trademark concern directly with that business. Realistically, you’ll need have to a lawyer handle the communication. You don’t want to mistakenly say something that will undermine your position. Also, you’ll need that lawyer to make certain you have superior trademark rights to your target, because you don’t want to be the prey rather than the predator.

If you can’t work out things that way, every social media site has an online process for submitting trademark-infringement complaints. If the social media site agrees with your complaint, it will take down the problematic account.

That process isn’t as effective as it used to be. Facebook used to regularly take down trademark-infringing accounts. Twitter wasn’t quite as helpful, but it sometimes took action. YouTube, which is owned by Google, rarely acted.

Lately, my experience has been that none of them are cooperative. They tend to reject complaints and leave up what appear to be obvious trademark infringements.

As a last resort, after putting the social-media site on detailed notice of the infringement, you could sue it for contributing to trademark infringement. You could ask for a court to order that the infringing account be taken down and seek damages from the social-media site.

I haven’t found a case where a major social-media site has been sued for this. That makes me suspicious, because this certainly comes up often. Perhaps such cases are being quietly settled before they become news.

Social media sites should be liable for refusing to take down clear trademark infringements of which they have been specifically notified. It’s a violation of trademark law to continue to supply a service to someone using that service for trademark infringement, after you have put that service supplier on notice of the infringement details.

Yet, in such a lawsuit, expect to face high-powered lawyers representing the social-media site, and the terms of service for the social-media site might force you to sue it in its home court in California. It would have to be worth a lot to you to take the fight that far.

Written on February 22, 2017.

by John B. Farmer

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