In social media, a trademark can be exposed to infringements that weaken its distinctiveness and brand reputation, writes our legal trainee Ida Kemppainen in her blog. She highlights three examples of unauthorized use of trademarks: hashtags, usernames and content that can be confused with another company's trademark.

One marketing trend that is sure to continue is the proliferation of visual content on social media. Social media platforms like Instagram, Snapchat, and TikTok have increased in popularity, and more and more companies are utilizing them to market their products and services through images and videos.

Social media has changed the use and protection of trademarks. In the social media environment, a trademark can be exposed to numerous micro-infringements that weaken its distinctiveness and brand reputation. However, identifying and addressing individual infringements can be challenging in certain situations.

Misuse of hashtags can lead to trademark infringement

A good example is the well-known hashtags (#) used in social media. They are a way to categorize content, but their misuse can cause confusion and even trademark infringements.

Trademark legislation allows companies to protect their hashtags as trademarks if they meet certain registrability criteria, such as distinctiveness and purpose of use as a commercial identifier. Many well-known brands have registered their hashtags as trademarks, such as #ThisIsBoss or #SAYITWITHPEPSI.

However, using another company's trademark as a hashtag in one's own marketing can lead to trademark infringement, especially if it creates a likelihood of confusion or gives a false impression that two separate companies or brands are affiliated with each other. This can happen, for example, when a competitor uses another company's trademark in their marketing to attract that brand's customers to their own website or social media platform.

Username may infringe another company's trademark

Using another company's trademark as a username on social media can also cause confusion and trademark infringements if the products or services overlap with trademark protection. 

The terms of use of social media platforms prohibit infringements of intellectual property rights, including trademark-infringing usernames and various infringing content. For example, according to Instagram's terms of use and community rules, it is only allowed to post content on Instagram that does not infringe on anyone else's intellectual property rights such as trademarks. Instagram users are responsible for the content they publish. If the published content is in violation of Instagram's terms of use or is reported to Instagram as infringing the intellectual property rights of another party, Instagram may remove that content.

Unauthorized use of trademarks in marketing

Trademark infringements also occur on social media platforms when a marketer uses another company's trademark or a similar mark in their own marketing.

The problem arises as to whether, for example, organic sharing on social media should be interpreted as business activity and thus hold the content sharer responsible for trademark infringement.

One option is to tighten the responsibility of the companies maintaining social media platforms, which could ensure better protection for trademarks, but at the same time, it may lead to difficult borderline drawing with freedom of speech.

Proactive measures to prevent trademark infringements

It is important for brand owners to register their brand names as usernames on social media platforms such as Facebook, Twitter, Instagram, and TikTok, even if the company does not plan to be active on those platforms. When a company proactively registers its brand names as usernames, the usernames remain under the company's management and usage, thus avoiding confusion among customers and jeopardizing the brand's reputation.

To ensure that trademark rights remain valid and to maintain the exclusive rights, companies must keep an eye on other parties that may, unintentionally or intentionally, infringe on the company's trademarks on social media or any other channel. This applies not only to the specific trademark of the company but also to marks that are similar and may cause confusion.