The Role of Social Media in Trademark Enforcement

The Role of Social Media in Trademark Enforcement

The world has been digitized, and in this digital world, social media is everywhere, even in remote locations where earlier we had only thought of having a digital connection. These things have changed the way we see reality in today’s world. Now, big companies or firms engage with people through social platforms like Twitter, Instagram, TikTok, Facebook, etc. These platforms give immense opportunities to connect with people and make their presence be felt. Companies engage people through viral hashtags, meme campaigns, or influencer partnerships to stay relevant in this competitive market[1].

Trademarks serve as an identity for the products they sell. They represent the quality and standard of the product. These advancements also bring new challenges with them as it becomes difficult for the traditional trademark law to protect their registered trademarks. People use these trademarks in memes and hashtags to make viral content, which also casts questions of infringement on them[2]. Trademark protects brand identity by building recognition, fostering trust, and providing legal recourse in case of infringements or counterfeiters.

Social media provides vulnerability to trademarks because brands widen their reach to people and being the fastest amplifier, it circulates the content rapidly, which exposes them to infringement. Rapid sharing and global reach come into the hands of the masses for which we don’t have centralized guidelines thus complicating the enforcement of trademark rights. The creativity of people often blurs the fine line between fair use and trademark infringement. The use of trademarks in the creation of memes for humor and parody can be protected under fair use but when it is used to promote something without permission then it crosse into infringement.

Risk of dilution is also involved when the trademark is used in viral hashtags or memes thereby reducing its impact or weakening its distinctiveness. Hashtags are essential promotional tools for both brands and consumers in the contemporary digital world. Hashtags are employed in marketing promotion (e.g., #hashtag-campaigns for promotions like #ShareACoke by Coca-Cola), brand development (e.g., Nike’s #JustDoIt), and brand building through creating brand conversation. They also monitor affection and word of mouth or any content published with a hashtag. On the other hand, consumers use hashtags for the purpose of sharing their opinions, using brands’ campaigns, finding different content and even generating new trends. Registered trademarks are once in a while threatened by consumer-generated promotional hashtags thus becoming a test to the brand managers to regain full control of its internationally recognized mark.

The ‘Chewy Vuitton case is a good of the various problems of intellectual property in marketing. Pet toy-maker Haute Diggity Dog was selling a luxury-inspired poodle chew toy called Chewy Vuiton. Although the main issue of the case was parody consumer terms and designs are used as objects and sources of conflict[3].

If a hashtag like #ChewyVuiton had gained popularity, the arguments for trademark dilution would only have become even tougher to prove. While the court disposed of Haute Diggity Dog in its favor while endorsing the parody defense, the case makes for an interesting reminder of the need for clear social media guidelines, especially in brands. Hashtags can actually be sought to be registered as a trademark when they meet certain parameters among them being registration under the Commerce Act. For example, hashtags that are relevant to specific campaigns, for instance, #SmileWithLays can be protected. Nevertheless, there will always be non-listing or non-credential hashtags, such as #FoodLovers.

Some difficulties that can be attributed to trademarking hashtags are that popular hashtags in particular might lose their specificity in the long run. It crosses national jurisdictions, making it hard to implement. Courts strictly adhere to fair use doctrines to free non-commercial uses of a hashtag. Acquire a trademark for specific campaign-promoted hashtags. You can employ the help of Hootsuite or Mention and monitor how the hashtag is being used and whether it is being used improperly[4]. Interact with Consumers and Build positive relations and content around your hashtag when a consumer misuses your hashtag, do it politely.

Internet trademarks are the primary styles with humor and parody common areas of content internet usage. It may change the logo, or slogans and images that depict cultural shifts or make fun of a particular brand. Although the majority of this content is not commercial in nature, it can offer an unclear or biased view of a brand or link it to concepts that are unwelcome to the trademark holder.

Meanwhile, the tagline, “Netflix and Chill” which came out of the new Netspeak, means relaxed and, in some ways more intimate activities while watching Netflix. It spread across social media platforms and the Internet for non-Netflix-driven purposes including events branding and merchandise; the incident is not acceptable which makes Netflix send cease and desist letters[5]. But Netflix used only moderate pressure on pirates that shared content through such websites, as it understood the likely angry responses. This shows how trademarks can change the perception of the public domain and how brands can be hard placed when trying to establish ownership over the use of the brand while ensuring that consumer goodwill is maintained.

Trademark law, which allows the limited use of trademarks for commentary, criticism, or parody, is called fair use. Courts consider certain criteria such as the purpose (as long as it is transformative, it comes under fair use) the commercial use, and in the impact of the work in the market. Thus, as long as the meme can be classified as transformative and non-commercial, brands are left with limited options unless the reputation and market value of a trademark is damaged.

Influencers are at the forefront of digital marketing, leveraging their large followings to amplify brand awareness and boost sales. Their authenticity and relatability make them valuable partners for brands. However, the decentralized nature of influencer marketing introduces risks, particularly around trademark violations. Influencers may unknowingly misuse trademarks by showcasing counterfeit goods, misrepresenting brand affiliations, or using logos and slogans without authorization. Such actions can confuse consumers, dilute trademarks, and lead to legal disputes, damaging both the brand and the influencer’s reputation.

One of them is an imitation high-end handbag, which also imitates the logos of Chanel and Louis Vuitton. The posts that were intended to bring the attention to cheaper alternatives, led to the reprimand of the influencer, and the vendor replica was sued. The event exposed the need for influencers to authenticate products and for firms to brief their partners on intellectual property laws. Trademark infringement claims can be brought against any influencer regardless of the damage done to their reputation if they failed to know it.

The legitimate use of a trademark and the importance of avoiding consumer confusion through prohibitive improper use of a mark are recognized guidelines for brands. Implement clear contractual terms setting trademark guidelines, rights and responsibilities rules for abuse, and course adherence to advertising codes; monitor influencers’ posts, to enforce compliance when needed. While brands may protect their trademarks, the recipe for success entails accurate and transparent marketing strategies allowing them to immerse relationships based on trust with influencers and their followers. Successful cooperation in the condition of high thematic and influencer marketing is possible only through effective cooperation between creativity and legal framework.

 As will be seen below, social media has brought about a new shift in the enforcement of trademarks with its attendant benefits and drawbacks. This kind of content sharing escalated with the help of social media, and since social media is known to have an international presence, brands have to protect themselves against unauthorized use, fake products, and trademark blurring. There is a need to be active in monitoring such activities that infringe on the laws, report and seek legal redress, and engage the management of social media platforms. Thus, these means of protection will become more significant as technology advances, and, for example, Artificial Intelligence (AI) tools will be crucial for enforcing trademarks. These AI-powered systems pose threats that can easily be red-flagged, which makes brands respond faster and more effectively. As a step forward, there is a need for the application of advanced technology such as artificial intelligence, machine learning, and blockchain technology to enhance the enforcement process and provide a strong barrier against infringement. Brands abiding with these trends and keeping a vigilant helm can protect their trademarks and work successfully in the digital age.


[1] Aditya Kumar Pandey -, ‘Analyzing the Impact of Meme Marketing on Consumer Engagement in the Digital Era’ (2024) 6 International Journal For Multidisciplinary Research 18961.

[2] ‘A Hashtag Is Worth a Thousand Words: An Empirical Investigation of Social Media Strategies in Trademarking Hashtags | Semantic Scholar’ <https://www.semanticscholar.org/paper/A-Hashtag-Is-Worth-a-Thousand-Words%3A-An-Empirical-Kumar-Qiu/e74e11aba0851157fb56d7c098945e70e7ad4b0c?utm_source=consensus> accessed 10 December 2024.

[3] James B Astrachan, ‘Vuitton Has a “Dog” in the Fight’, SSRN Electronic Journal (2007) <http://www.ssrn.com/abstract=1625948> accessed 10 December 2024.

[4] Yosef Mealem, Yacov Yacobi and Gideon Yaniv, ‘Trademark Infringement and Optimal Monitoring Policy’ (2010) 62 Journal of Economics and Business 116.

[5] Karen Robson, Jeremy De Beer and Ian P McCarthy, ‘Open Branding: Managing the Unauthorized Use of Brand-Related Intellectual Property’ (2020) 63 Business Horizons 773.


Author: Ankit Kumar, 2nd year student at Chanakya National Law University (CNLU), Patna pursuing the course of B.A. LL.B. (Hons.).

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