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Beauty & The Law Using Social Media Explore the legal considerations involved in brand protection and advertising on social-media sites. BEAUTY STORE BUSINESS HIGHLIGHTED THE importance of smart use of social media in its September 2013 article "Building a Successful Social-Media Campaign." The insightful article focused on how businesses can maintain a social-media presence and happens to be a springboard for discussion about a broad range of legal topics. This installment of "Beauty & The Law" is the second of two columns discussing legal issues surrounding social media. The first column—"Old Rules for New Media" in the November 2013 issue—explored employee posts on the job, off the job, social-media policies and the use of social media to screen job applicants and follow employee's activities. This second column will address the legal issues surrounding brand protection and advertising on social-media sites. BRAND PROTECTION ON SOCIAL-MEDIA SITES It's important to take action to stop serious misuse of trademarks because a trademark owner can lose the exclusive rights to a trademark if other people misuse it. Once a trademark is misused to the point that it no longer identifies the source and quality of your products and services, it can become generic and lose protection. For example, "aspirin" started out as a trademarked name but lost its protection in the United States in 1921 because too many people referred to all pain relievers with the same chemical composition as "aspirin." Trademark owners need to police their trademark's use or risk losing these valuable exclusive rights. Even if your business doesn't have a social-media presence or advertise on social media, you should patrol social media periodically to ensure that no one is using your brand name or product images improperly. There are so many Internet sites and social-media sites that policing trademark usage could be a fulltime job. Most beauty stores will need to prioritize the greatest brand risks and address them while ignoring the low-risk problems. The highest risk unauthorized brand uses will likely be uses by counterfeiters who are passing off third-rate merchandise as yours, followed by false and 62 January 2014 | beautystorebusiness.com misleading posts by third parties. Legitimate reviews will frequently involve legally permissible "fair use" of brands, which are not considered copyright or trademark infringements and usually do not merit a response. Copyrights remain valid even if the copyright owner doesn't police unauthorized uses. However, copyright infringement is rampant on the Internet, and it will become increasingly more difficult to stop once your copyrighted material is posted widely on sites that people will assume are free to copy from. There are several courses of action to stop someone from infringing your copyrights and trademarks on a social-media site. A polite, firm letter or email to the infringer is all that is usually needed. Most wellintentioned people will back off once they realize that they have copied someone else's intellectual property. If that communication doesn't stop the infringement, a copyright or trademark owner can notify the social-media site. Most have policies prohibiting infringement of any sort. While some social-media sites will remove infringing materials, many seem reluctant to cooperate, even though their posted policies call for taking them down. They have good reason to avoid becoming arbitrators of trademark disputes. Yelp's terms of service deny any obligation to take down infringing materials: "We are under no obligation to enforce the Terms on your behalf against another user." The websites of both Facebook and Twitter, however, indicate that they take down or block access to content that infringes copyrights and trademarks if they receive a valid complaint. If these efforts are unsuccessful, a trademark owner may choose to sue the infringer. This is an expensive and time-consuming process that many businesses will chose not to pursue. The options for a copyright holder are more streamlined, thanks to the Digital Millennium Copyright Act. Most social-media sites follow the DMCA procedures because strict compliance relieves them of liability for hosting infringing materials posted by their subscribers. Under the DMCA, anyone authorized by the copyright owner can send a notice to a U.S. social-media site describing the copyrighted work and giving the URL where it is improperly posted. This notice is referred to as a takedown notice. The complaining party's name, address and electronic signature must be in the takedown notice. The notice must also include statements that the person complaining has a good-faith belief that there is no legal reason for the materials to be posted, the notice is accurate and the person complaining is authorized by the copyright owner to submit the notice. The social-media site must then remove the infringing content or block access to it. The social-media site must tell the subscriber who posted the allegedly infringing content that it has removed it, and the subscriber has an opportunity to dispute the complaint. If the content is reposted as a result of the subscriber's response, the copyright owner may sue the subscriber but has to sue within a 14-day window. Copyright owners have to be very careful to make valid claims because if a copyright owner misrepresents its rights, it is liable to the social-media site for damages. Caution is also merited because many takedown notices are posted on the Internet site chillingeffects.org, which is run by a group of law schools and the Electronic Frontier Foundation and highlights the tension between free speech protected by the First Amendment to the U.S. Constitution and the ease of triggering removal of allegedly infringing online content. Another aspect of brand protection involves other people's use of your beauty store name in their socialmedia user names. The best approach to preventing this abuse is registering your username with each new social-media site as it comes along. Because there are so many sites, it would be prohibitively expensive to sue each violator who uses a name similar to your business's name. Therefore, registering your username as a socialmedia username is a more efficient way to reserve your name for your own business. ADVERTISING ON SOCIAL-MEDIA SITES In addition to maintaining a site presence, advertising falls into two main categories: running sweepstakes or contests, Image courtesy of Barry Burns by Jean Warshaw