Navigating Brand Protection and Trademarks for Social Media Influencers

Navigating Brand Protection and Trademarks for Social Media Influencers

Building a brand or business as an influencer on social media is not easy. Not only are you tasked with building a successful, recognizable brand, you’re building yourself as the brand. Doing this work therefore takes time, dedication, hard work, and a lot of bravery. An investment of your time, talents, and personality in becoming a trusted authority via social media is difficult enough, but it’s vitally important to ensure that your brand– which is to say, yourself– is adequately protected as you grow.

In this article, we share best practices for social media influencers to protect their brand, reputation, and business through trademark registration and prudent use.

How do you protect yourself as an influencer?

What is a Trademark and how can a trademark protect a brand?

A trademark can be a word, phrase, symbol, or design that distinguishes the source of goods or services and identifies their origin. A brand’s trademarks may safeguard it by preventing others from using confusingly similar marks in connection with goods or services that could have a detrimental impact on your company.

How do influencers make a brand out of their social media business?

A brand distinguishes a company, product, or service from others. For social media stars, their online presence and fan base are critical to their business. It’s vital to safeguard your brand and company when you work hard to create a following that generates profit.  Very often, if not always, a social media influencer’s brand is primarily going to be the individual personally- his or her name, stage-name, distinguishing characteristics, etc…  As you are working to differentiate yourself and find your niche in this competitive space, be aware that you are also developing trademark and other intellectual property rights.  These rights make your brand valuable, but because they are valuable, they are also attractive to infringers seeking to profit off your efforts impermissibly.

When should you consider registering for a trademark?

Trademark protection is important to pursue as early as prudently possible. Delays in seeking registration create gaps in intellectual property protections that infringers may try to exploit at your expense.  Obtaining trademark registrations early on is relatively inexpensive and affords you much more enforcement strength.  This is your name.  Any other brand elements will be intimately tied up in your identity as an influencer.  Therefore, claim broad protections early, well before bad actors might try to exploit weaknesses. 

What trademark protection should social media influencers consider?

Anything that communicates to consumers what the source is of a product or service could be registrable as a trademark.  The United States Patent & Trademark Office (“USPTO”) has registered color marks, smell marks, sound marks, trade dress, logos, and of course word marks.  Influencers, especially those just starting out, should consider all source-identifiers in their repertoires as potential registered trademarks, but in general it pays to keep things simple initially. This means obtaining trademark registration protection for names (including stage names or personal names), personal brand elements (like a proprietary logo or company name), or other identifying marks that are often or always used to promote the influencer’s business, such as a slogan or tag-line. 

How does trademark protection benefit you?

There are many benefits to trademarking your social media influencer brand, including:

  • Protection against infringers using your trademark without permission
  • The ability to license your trademark to other businesses for use at higher royalty rates and on other more favorable terms than if the mark were unregistered
  • The right to take legal action in federal court against trademark infringers

Why should you hire a trademark attorney to assist with the process?

It is possible to apply to register a trademark without a lawyer, so why should influencers hire one?

The trademark application process is complex and there are specific forms and information that must be submitted in order for the trademark to be registered. People filing “pro se”–that is, without the assistance of counsel–tend to have their applications refused at a significantly higher rate than those who use counsel.  Therefore, while hiring an attorney adds costs, the added benefit can be huge.  Often it is the difference between getting a registration and having spent USPTO filing fees for, ultimately, nothing.  

In addition to assisting in the application process, an experienced  trademark attorney can help you as a general brand adviser, taking a close look at your social media influencer brand and identifying opportunities for growth as well as for shoring up protection of your IP.

Finally, a trademark attorney can help you maintain, enforce and defend your brand. A registered trademark gives influencers the right to take legal action against anyone who infringes upon their brand or uses it without permission, but an attorney will be your best line of defense and offense throughout the lifetime of your business.

How long does it take to file for a trademark?

The trademark application process can take anywhere from several months to a year or on rare occasions- longer. This depends chiefly on the wait times with the USPTO at the time of your application.

One commonly misunderstood feature of trademark registration is that registration confers global rights and priority.  Unfortunately, trademark law is jurisdictional and territorial- a US registration gives you registration rights in the US.  Consequently, to obtain registration protections in other countries, it is necessary to file applications in those countries where your mark will be in use.  

What are the next steps?

If you’re serious about protecting your hard-earned personal/social media brand elements, connect with a trademark attorney to get the process started. At Founders Legal, we offer free consultations to assess your needs and guide you through the next steps of the process.

Zach Eyster, Senior IP Counsel

Zach Eyster
Of Counsel Attorney, Trademarks
[email protected]

Zach’s experience in trademark, brand, licensing, and technology runs deep, as he has operated within these very specialized, niche areas of practice over the course of his entire legal career.
Having accrued significant experience before the USPTO and Trademark Trial & Appeal Board, and in the day-to-day protection and growth of clients’ IP assets, he is well-prepared to counsel on the most efficient, cost-effective, and investment-worthy courses of action with clients at all stages of growth and maturity.
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