Influencers Beware: Those Hashtags Could Get You in Serious Trademark Trouble
There is no denying the impact of social media on commerce and trade. Statista reports that digital advertising spending at US$380 billion in 2020, is projected to almost double that figure by 2024. Social media is an important part of brand communication for businesses. It is quick, interactive, accessible, and has global reach. These days, it is probably safe to say that a business’s marketing strategy for consumer goods is not complete without influencer marketing.
Social media influencers leverage their power with their followers for the benefit of the brands that they endorse. Brands rely on an influencer’s ability to convert trusting followers into paying customers. The influencer receives compensation, through free products or money, and engages with their followers. It’s a win-win for both sides, and it’s still business.
Every brand has the legal right to market and advertise their product, but they must do so without infringing on the rights of other brands, and without deceiving consumers with false claims. The U.S. District Court for the Central District of California recently ruled that social media influencers can be held legally responsible for trademark infringement and false advertising.
In the case filed by Petunia Products, Inc. (Petunia) against Rodan & Fields, LLC (R+F), Molly Sims (Sims), and others, Petunia alleged that R+F and Sims committed trademark infringement and false advertising arising from the marketing of R+F’s competing “Brow Defining Boost” product. Sims, who authored a blog post to promote R+F’s product, sought to dismiss Petunia’s claims for direct infringement, contributory infringement, false advertising, and unlawful and unfair business practices, but failed in part.
Petunia alleged among other things that Sims’s blog post with the hashtag #BROWBOOST was an infringement on their trademark and a dilution of their social media presence.
Pertinent Information to Know
- The owner of a trademark can make an infringement claim against anyone who uses their trademark in commerce in a way that is likely to confuse customers as to the source of the product. A trademark is used in commerce when it is used in connection with the sale, distribution, or advertising of goods and services. A sponsored blog post or paid advertisement intended to promote the sale of a trademarked good or service is considered to be used in commerce.
- There is a difference between the use of a trademark to provide commentary on goods or services and commercial use of a trademark. A post will cross the line from mere commentary to commercial use when it is a paid advertisement with links to any commercial sites to encourage the sales of the goods or service.
- False advertising is knowingly disseminating untrue or misleading information about a good or service that is likely to deceive consumers. The use of a trademark that is likely to cause confusion in the market can be false advertising.
Even though Sims was offering her commentary about the product, which is allowed, because R+F paid Sims for the blog post it was advertising. Therefore, Sims – a social media influencer – is legally responsible for trademark infringement because the product she advertised was infringing.
Take Action by Contacting an Experienced Trademark Attorney in Los Angeles Today
When an influencer is paid to promote a brand, they bear some legal responsibility for any claims of trademark infringement and false advertising. If you’re an influencer, it is in your best interest to have a trademark attorney assess your legal exposure before you commit to a brand.
If you’re looking for a trademark attorney in Los Angeles, our experienced trademark attorneys at Omni Legal Group can help you. For further information or to schedule a consultation please contact Omni Legal Group at 855.433.2226 or visit www.OmniLegalGroup.com to learn more.