Going social – protecting your social media brand

Social media channels such as TikTok, Instagram and Twitch are creating a whole new generation of exciting, fast-moving brands. Often built around the personalities leading the channels, and targeting specific interests and hobbies, these brands rely on personal engagement and authenticity to build fan bases. The rise to fame can be meteoric, with some of the most successful accounts building audiences numbering in the tens of millions in a matter of months.

For these brands, thinking about protecting their intellectual property may feel rather heavy-handed and in opposition to the friendly, audience-focused approach that they endorse. However, there are powerful reasons why social media influencers should act to protect their brand. As well as the risk of losing out financially on the revenue-generating opportunities of a recognised brand if it is infringed by a third party, in the fast-paced new media world, it is important for brands to be able to protect their audiences from fake profiles and accounts that might trade off their reputation and damage it in the process.

Insta influence

Some stars who have risen to prominence through social media have been more proactive than others when it comes to trade mark protection. The now-legendary instagram cleaning guru Sophie Hinchliffe has captured hearts in the UK with her down-to-earth, but oh-so-glamorously presented tips for banishing domestic dirt. She launched @mrshinchhome in March 2018 and racked up 1 million followers just three months later. Her endorsement of cleaning products can be hugely valuable – for example Zoflora saw sales jump by 25% after Mrs Hinch revealed it as her go-to disinfectant.

Sophie’s nickname “Mrs Hinch” was registered with the UK IPO in February 2020 and the registration protects the mark in 18 classes, covering the full range of cleaning products and homewares, as well as baby products, indicating that she is likely to explore other markets in future.

Tiktok trade marks

Top TikTok artists – despite their incredible success – have been less forward-thinking about protecting their brands. Dancer Charli d’Amelio, the platform’s most-followed artist, has at the time of writing amassed an incredible 81 million followers since starting to post content in June 2019. Fans can buy Charli d’Amelio-branded merchandise and she has been involved in the launch of several cosmetic range collaborations. With an audience of such size, it is estimated that Charli can charge around $30,000 for a promotional post.

Yet, despite the global influence she enjoys, Charli has not applied to register any trademarks in the UK or Europe. There are, however, two registrations in the US jurisdiction which were secured in March 2020. One is for hats, T shirts and sweatshirts and the other for entertainment in the form of dance performances. Given the diverse potential markets that Charli’s influence could open up it seems surprising that registrations have not been applied for in more classes and territories.

Looking at UK influencers, one of the country’s top Tiktok stars is Abby Roberts. Abby is a talented make up artist who has been sharing her looks on Instagram since 2013. Tiktok has boosted her profile and she now has more than 11 million followers on the platform. Her website offers branded merchandise featuring her spiky logo. Yet Abby has not applied to register any trademarks in the UK or further afield.

Twitch stars leave trade marks untouched

It’s a similar situation with livestreaming platform Twitch, which is growing in popularity. Recent research from WTR Magazine found that only around half of the popular streamers on major livestreaming platform Twitch have registered trademark protection for their logos or slogans. This leaves those that haven’t vulnerable to third parties capitalising on their profile. When the audiences are this large, this is a real risk for social media stars.

Expert take: Why, when and how should social media brands seek trade mark protection?

One of the key questions is at what point should social brands start looking into IP protection? A brand that has grown out of a hobby or interest might not immediately seem to have commercial value, but as it grows in popularity, others will start to take notice. As the examples above demonstrate, it can take mere months to build a sizeable following.

We talked to Chris McLeod, Chartered Trademark Attorney and Partner at Elkington and Fife, to get his expert take on why, when and how new, fast-moving social media-based brands should think about trade mark protection.

What are the benefits of trade mark registration for fast-moving brands?

CM: I would not distinguish fast-moving brands from others in this respect.  Generally, trade mark registration is inexpensive and quick, but the benefits of the resulting, potentially infinite monopoly are extensive, both in terms of protection and enforcement against third parties.

When should a channel owner be thinking about trade mark registration? As soon as they develop a logo? When they reach a certain follower size? When they start bringing in notable revenue?

CM: This is a common question and an understandably common concern.  Again, the relatively low cost makes it a good idea to think about this at an early stage.  It is often the case that when a fast-moving (or more traditional) brand starts to gain significant exposure, unscrupulous or opportunistic operators often attempt to cash in.  In these circumstances, having the monopoly rights associated with a trade mark registration will usually make it easier and less expensive to address issues.

What classes should social brands register in? Should they be considering future diversification the first time they register their trade mark, or just focus on the core area to start with?

CM: There is an inherent tension between cost and ambition, because adding classes increases costs, although often not significantly.  I tend to advise clients in this sector to think ahead in order to future-proof an application to some extent, because it is not possible to add classes to or otherwise extend the scope of an application after filing, meaning that it would then be necessary to file additional applications and incur more expense. 

I also recommend what I call the “five years from now” test.  In most jurisdictions, you have five years from registration until a registration potentially becomes vulnerable to cancellation for non-use.  It therefore makes sense to be expansive to some extent.  For example, if your core offering is cosmetics, think about obvious brand extensions, such as perfume, jewellery, bags, clothing and the like.

A small investment now could pay dividends in future

As Chris points out, the cost of filing a trade mark application is not excessive – around £250 in the UK – and it provides protection for a long period so, even if your social following is modest right now, if you believe that your channel has potential make sure that trade mark strategy is high on your to-do list. A business-like approach to trade marks will enable social brands to diversify effectively, assure their integrity in an environment where fakes are a big issue, and present themselves professionally to potential brand partners.

We always recommend that you consult an experienced trade mark attorney for advice to ensure that your brand, and your audience, is protected.