Brand Protection in Digital Spaces

Socials

The unrelenting rise in digital marketing and online brand presence have meant that conflicts around brand rights on digital platforms have become increasingly commonplace. We have seen a rise in the number of conflicts identified through use of social media platforms such as Instagram and Facebook as a marketing tool of huge corporations and tiny start-ups alike.

Long gone are the days when a business owner in another hemisphere can rest blissfully unaware of their brand’s doppelganger located at the other side of the world. The rise of social media has meant that tussles over brand names, product names and creator identities are no longer restricted to a locality and where one brand may happen upon another due to physical proximity. Social media handles, hooks and account names make the discovery of a similarly named competitor likely when searching for an account or even attempting to ‘hashtag’ a post.

The use of social media as part of brand marketing is almost universal across industries. Often brand names, unless very uniquely distinctive, will often have to be adjusted when registering an account with a popular platform since the actual name will often have been registered and as such unavailable.

Social media account names are subject to the same rules and limitations in terms of what can be used, where and for what purpose. While it is often not possible to forcefully obtain the account name by asserting your trade mark rights, it is possible to have an account restricted or removed where the products or services are listed under the same, or a deceptively similar, brand name.

YouTube

YouTube comes with its own unique issues, alongside squabbles over rights to account or channel name, the platform has been plagued with copyright claims. In the early days of YouTube these were most often uploads of popular content such as music videos, movies and television shows. Lately, alongside the rise of creator channels and podcasts we have seen conflicts over usage of clips and copywritten images worked into the videos of YouTube creators.

YouTube, no doubt fatigued under the weight of such a volume of complaints of copyright infringements and threats to the platform itself in terms of liability for uploads, has quite recently instigated its own, AI supported ‘take down’ system.

As a means of adjudicating copyright claims the platform now allocates all ad revenue from a particular video, which is found to contain copyright material without the corresponding permissions, to the rightful owner of the copyright materials.

While this is certainly fair in cases of flagrant and dishonest infringement this underdeveloped and somewhat unsophisticated system is far from perfect. For example, under US copyright law and most other harmonised systems, there are defences which allow for the use of copyright material, such as fair use for the purposes of criticism or commentary. As such in many cases a YouTube report or decision can be queried and corrected by reference to the applicable legislation.

Ecommerce

eBay

The potential for branding face-offs is not restricted to social media platforms and the need for digital resolution is yet more pronounced on ecommerce platforms such as Amazon and Ebay.

eBay had long since policed counterfeit articles, under pressure from larger brands as well as duped consumers. To ensure that counterfeit goods were not listed for sale Ebay strongly enforced the use of an EIN (Product identifier codes) when adding a listing, the removal of reported and suspicious listings and the closure of accounts found to be onselling counterfeit products.

eBay utilises a multiple listing format, allowing for the same product to be listed separately by distinct sellers. This means that when you search for, for example, a particular model of coffee machine by Delonghi, you will encounter multiple listings by different sellers of the same product. It is then for the purchaser to sift and sort results before settling upon the seller they wish to proceed with.

Amazon

Amazon, by virtue of its single listing strategy had encountered greater need to distinguish and authenticate brands. To list a branded item on Amazon, for example Nike trainers AirMax 5.0, the seller must list their available items along with the product identifier, to confirm the identity of the goods offered. The result is that all identical products, from an array of sellers, are listed under a single listing. This system is customer focused, since it enables a prospective buyer to quickly identify the lowest price for the same item, within the context of location, availability and delivery time.

Where this system began to mitigate against the sellers was in the case of unbranded, generic goods, of the type which seem to do so well on Amazon. These huge catalogues of unbranded, everyday items have been the cornerstone of the platform ever since it evolved beyond the world’s biggest purveyor of used books. Thousands of successful sellers made a living listing household goods such as utensils, gardening tools, candles, pet toys and cleaning equipment.

A non-branded item, purchased from the same wholesaler or factory, such as the common metal tin-can opener, will in many cases be identical. This meant that a seller who did not have a legitimate brand, ie was not the proprietor of intellectual property rights in the form of a registered trade mark, design right or patent, could sell hundreds or even thousands of their items successfully, build up excellent reviews, only to have another, often newer, sellers come along and add their offering under the same listing. The new seller can then reap the rewards of the original listing in terms of reviews, items previously sold and being nearer to the first search results, attracting immediate sales but undercutting the price by a tiny margin of twenty cents.

To provide a solution to this issue Amazon created ABR, Amazon Brand Registry. This internal IP system has enabled them to identify the brands of their sellers at the point of listing and ensure automatically that the seller could build their brand on Amazon free from listing hijacking. Newcomers now have to create their own brand and build their own listings.

With the aim of heightening standards and trust across the platform Amazon actively encourages enrollment onto its Brand Registry and along with listing protections the feature also allows users an enhanced back-end for page building as well as other upgraded seller features, such as product videos and a greater number of product images.

If you have had issues in protecting your brand online in digital media spaces or on e-commerce platforms there are often solutions available, within the platforms’ terms of services, or by reference to the governing intellectual property laws.

BaxterIP is an Amazon Accelerator firm, approved to authorise and enable access for Australian brands onto Amazon’s Brand Registry. To find out more or to discuss your matter with an IP professional experienced in Amazon and other platforms please reach out to us today.