Friday, December 18, 2009

IP Threats eroded by Social Media?

I recently had a fascinating chat with a contact of mine (obviously unnamed and not a client) regarding the possibility of trade mark infringement. They had identified a third party registered trade mark with prior rights in the name they have started using but felt the services/goods they were supplying were not competitive with or detrimental to the distinctive nature of the existing mark, despite overlapping in classes. Nothing new so far.....

We chatted some more about the risks of opposition and infringement but my contact was relatively relaxed. The reason for this relaxed state of mind to what is normally a brand crunch point was social media. Social Media I hear you ask? Yes, my contact believed that if things got "heavy" (meaning litigation) they would start a social media campaign to gain support and PR for their plight, thus exerting pressure on the existing rights owner to give in to permit co-existence or better.

Of course if there were an injunction granted by the prior rights owner it would be a criminal offence not to comply but that injunction would and could not apply to all the users of Twitter for example.

This lead me on to thinking about the Trafigura case which has been seen as a 'PR own goal' by many. To paraphrase; Trafigura issued a superinjunction preventing reporting of a question in parliament. The Guardian newspaper complied with this injunction but a leak created an enormous amount of chatter via social networks and trended for several days on Twitter. This was the exact opposite of the intention of the superinjunction.

So what next should competing brands use social media as a defence to trade mark infringement. I would suggest this is dangerous ploy because there are so many unknowns and such an action could exaggerate any damage to the existing rights owner. Of course such a movement could only be orchestrated by individuals with large followings or a great deal of social influence. Negotiation a deal both parties can live with is always the best way!

I have so many questions to which as yet have no answers including:
  1. Could influential socialites set up a business or be sponsored to start a campaign to aid a defence;
  2. Should there be a law prohibiting "the incitement of negative PR for commercial benefit" who would police it - it would be very difficult to enforce and who do you enforce it against?;
  3. How will the courts react to this type of activity and how useful will an injunction be given the Trafigura matter.
Fascinating times!