Social Media and Trademarks: Understanding Your Rights in a Digital Age

The popularity of various social media applications, such as Facebook and Twitter, has grown at a rate that far exceeds the ability of courts and the legislature to keep up with regulations and their interpretation.  A user on any one of these applications is able to post a comment, a picture, a link or logo within seconds of its creation, becoming a potential advertiser for their own company or for another business entity.  At the same time, such a posting may open the user up to liability for trademark infringement, misuse or other causes of action.

Of particular importance at this intersection of social advertising and trademark law is the rights of individuals or small businesses with common law trademarks.  In the U.S., trademark rights are created by use, not by an official registration.  Any trademarkis a name, slogan, logo or any other indicator that a particular source provides a specific good or service.  A common law trademark is one that is used and continues to be used in commerce without ever filing for official registration.  Determining who has the legal right to use the mark is a question of priority.  Without registration, the trademark owner may be able to enforce the mark against anyone using the same or a confusingly similar mark in connection with the same goods or services in the territory in which the mark is used.

Many small businesses have developed common law trademark rights through names or logos and have not had the mark registered, most often because they do not qualify for federal registration.  With the growth of social media as a marketing tool, these businesses create Facebook pages and Twitter accounts, displaying those names and logos.  Increasingly, these local businesses are being forced to abandon those marks or risk losing their social media accounts because a larger, national business has threatened them with legal action, even if the national business was not using the mark first.

A federal registration will help any business create solid, enforceable trademark rights.  However, a federal registration does not always allow the owner to terminate the earlier use of a common law trademark.  Facebook, Twitter and other social media applications are world-wide and cannot limit access to certain geographic territories because of federal or common law trademark rights.  If you have had your Facebook page or Twitter account removed because of an alleged trademark violation, you may be able to have your page restored.  Although courts are just starting to hear these cases, there are decisions and legal precedents that may support you if you have encountered these circumstances.

The combination of national advertising, social media platforms and traditional trademark principles create technical and very complex legal issues.  Knowing your rights in this area is critical to your established goodwill and your continued business success.

For more information or to speak with us about your legal issue, please contact us in Ann Arbor at 734-665-4441, and in Ypsilanti at 734-483-3626.  To learn more about Pear Sperling Eggan & Daniels, P.C., or any of our attorneys, please visit us at www.psedlaw.com.

Good News for Business Clients: Business Courts are Finally Here!

On July 1, 2013, seventeen Michigan counties will begin accepting filings in their Business Court divisions.  Late last year, the Michigan Legislature passed a law requiring any Michigan circuit court with three or more judges to begin a docket for a business court to deal with business or commercial disputes.  These cases will include any dispute involving a business enterprise.  A business enterprise is defined by the law as any of the following:  a sole proprietorship, partnership, limited partnership, joint venture, limited liability company, limited liability partnership, for-profit or not-for-profit corporation or professional corporation, business trust, real estate investment trust, or any other entity in which a business may lawfully be conducted in the jurisdiction in which the business is being conducted.  However, business enterprise does not include an ecclesiastical or religious organization.   However, certain claims involving other nonprofit organizations can be heard in the business court if they meet the requirements.

Business or commercial disputes include, but are not limited to, the following types of actions:

(a) Those involving information technology, software, or website development, maintenance, or hosting.

(b) Those involving the internal organization of business entities and the rights or obligations of shareholders, partners, members, owners, officers, directors, or managers.

(c) Those arising out of contractual agreements or other business dealings, including licensing, trade secret, intellectual property, antitrust, securities, non-compete, non-solicitation, and confidentiality agreements if all available administrative remedies are completely exhausted.

(d) Those arising out of commercial transactions, including commercial bank transactions.

(e) Those arising out of business or commercial insurance policies.

(f) Those involving commercial real property.

However, disputes involving employee terminations and civil rights cases in those contexts, as well as workers compensation are generally exempted from the business court’s jurisdiction, with limited exception.

The seventeen counties subject to the law and the July 1, 2013, deadline are: Wayne, Washtenaw, St. Clair, Oakland, Monroe, Macomb, Genesee, Jackson, Kalamazoo, Muskegon, Kent, Ottawa, Ingham, Calhoun, Berrien, Saginaw and Bay.  Other counties are free to add a business court if they choose.

For more information or to speak with us about your business law issue, please contact us in Ann Arbor at 734-665-4441, and in Ypsilanti at 734-483-3626.  To learn more about Pear Sperling Eggan & Daniels, P.C., or any of our attorneys, please visit us at www.psedlaw.com.