Trademark Stolen

Brandjacking is exactly what it sounds like. It is using the trademark of a company without their permission for selfish reasons or to spread lies about the brand you are stealing from. Lisa P. Ramsey, who teaches law at the University of San Diego, provided us with the information on brandjacking. She has actually written many papers on the subject and the one cited was actually printed in the Buffalo Law Review.

It is no secret that social networks like MySpace and Facebook are now being used to communicate with their customers. They use them to gain feedback directly from the customers who use their products so they can make improvements in a timely manner. The problem with this is that anyone can create a username that says they are a company like Coca-Cola when in fact; the well-established company most likely did not give them permission to do so. This form of brandjacking, according to Ramsey, is called “username squatting” or “facesquatting” when Facebook started to allow the use of usernames in the summer of 2009.

There are certain companies who are perfectly okay with people using their trademark for good. For example, Coca-Cola is well aware of the fan page that has been set up in their name and continues to let it be in existence today. However, there are many companies who have shut down many of these sites like in the case of “Janet” of Exxon Mobil.

Janet was supposed to be an employee from Exxon Mobil who created a Twitter account to answer questions about the company. She was a face for the organization and engaged people in conversation about Exxon. The problem was she wasn’t an actual employee and it only took three days for the company to shut down the Twitter account. This is an example of what happens most of the time to those who brandjack.

Sometimes brandjacking can be dangerous. An example of this would be when someone used Nine West’s trademark to set up fake model auditions. The models were asked to send personal information and photographs that might deem inappropriate. Of the members that joined the group and actually participated became at least 400. For all Nine-West knew, this information that models were sending was going to an imposter and immediate action was taken. However, the same thing happened again so the company had no choice, but to sue for trademark infringement and now Nine West currently controls their own Facebook so no one else can create a fake one for them.

The problem with prohibiting brandjacking is that it can be argued on both sides. On one hand, you are clearly engaging in the infringement use of trademarked brands online, but on the other people are arguing that condemning brandjackers goes against the First Amendment. That is at least what brandjackers are testifying against in their cases. According to Ramsey, most companies win their cases against brandjackers.

For more information regarding the information in this article, here is the article that Ramsey wrote in the Buffalo Law Review.

  1. #1 by Kimberly Lofgren on October 7, 2010 - 1:01 AM

    I think even though brandjacking has negative connotations, which is true most of the time, there are also positive that come out it. Like the Coca-Cola example you gave, I know a lot of other pages created on facebook that use the companies logo and other information, but are not part of the company. When this happens to companies they should consider whether the page is doing good or harm to the company before having it taken down.

    I don’t know of any court cases arising form this issue, but I know the companies have contacted the social network to have the pages taken down. I think brandjacking is a lesson for companies to realize they need to have a presence in social media so they won’t get branjacked.

    • #2 by Shane Garvin on October 7, 2010 - 5:01 AM

      I completely agree with what you are saying Kim. A lot of great sites and free publicity does come with brandjacking sometimes (i.e. Coca-Cola). I believe some of the reason you are having difficulties in finding court cases about good brandjacking are due to the fact that if a company feels someone is helping them out, then there is no need for a court case.

      Maybe another thing I should have mentioned is the unpredictability of these good brandjackers. Yes, the Coca-Cola fan page is doing great things for Coke now, but what if just one day they up and decided to turn against their product of choice. Would Coca-Cola be able to take them to court even though they knew about the site’s existence for a long time? These are just some questions you can ponder on your own, but if you would like to share, I’m sure we would all like to hear some of your insight.

      Thank you again for posting.

  2. #3 by Phillip George Mike on October 7, 2010 - 6:07 AM

    There can be some positive benefits of brandjacking, but the value of them opposed to the risk that comes along with them may not be worth it. For an established brand, it would not seem to be much of a problem; in fact, seeing impostor brands out there may help the brand gain some credibility or possible sympathy as they are seen as victims. It can also be a place to learn about what works and doesn’t work if the brandjacker has some savvy to them.

    It is though interesting to note that some companies are letting people brandjack them if they are positing accurate things about them. I wonder if some of those good brandjackers have ever been hired by the company they taking the identity of.

    On Twitter, there are thousands of impostors, and they are dealt with in different ways. One way that I think is interesting is that some people gain recognition by being the fake or alter ego of the celebrity or business. The difference between a normal jacker is that these people claim to be people like, “LebronJames’Ego” or even his elbow, not the actual person.

    With that, not thwarting impostors can leave your company in a precarious position, even if they are trying to do you good. People who don’t know exactly what your company is doing are commenting on your behalf, and some people must believe them. The voice they are using is not yours, and that is a huge risk during this era in which information dispersion is almost instant.

    • #4 by Shane Garvin on October 9, 2010 - 10:32 PM

      I think what you’re saying Phil is completely accurate and I appreciate the feedback. This also ties into the fact that their are no specific laws about brandjacking. Due to the lack of authority on brandjacking, it makes it seem a bit unfair that you get pulled into lawsuits for negative brandjacking when people who are positive brandjackers get praised by the company for their efforts. The fact of the matter is that their needs to be consequences for all trademark using equally. Either they need to punished equally or companies need to accept the negativity and move past it. However, this only applies to the people who make fan pages or use the company trademark in relation to postive/negative feedback. It is clear that you cannot pretend to be a company, respond to questions about that company, and get away with it.

      Thank you Phil again for the comment. Your feedback is much appreciated.

  3. #5 by Lauren Pezze on October 10, 2010 - 5:21 PM

    I understand and believe that brandjacking has both negative and positive outcomes. I can also understand why someone would create a group or facebook page to create an open forum about a certain company. If this is the case, it should not be used as something malicious. People have the right to talk about something they like or dislike but they should clearly explain who they are. Are they an employee, unsatisfied customer, or someone just commenting to comment. If a person is being untruthful about who they are and if they are saying they have a certain relationship with that company (i.e. employee) when they really do not, I would believe that to be unconstitutional.

    Either way, companies need to realize that people are going to talk, and with new social media, it is much easier for them. Companies need to be out there creating facebook pages and twitter before customers do. That way they can beat some of the people who would start fake or negative pages.

  4. #6 by Caroline Barna on October 10, 2010 - 7:32 PM

    Like Phil, I think it is interesting that some companies are allowing others to brandjack them if the content is positive. You would think that they would want to control all of the marketing. I think companies are realizing that people are going to use social media to talk about them whether they like it or not. I think that if a company has a positive reputation to begin with, it would be hard for brandjacking to diminish that.

    I know that in the case of Nestle, Greenpeace campaigners used KitKat advertising in their YouTube videos and protests to condemn the company’s use of unsustainable practices.

    Nestle actually responded to Greenpeace’s demands and announced a “zero deforestation” policy. It’s interesting to see that even though Greenpeace infringed upon Nestle’s trademark rights, the company still responded to them.

    • #7 by Shane Garvin on October 11, 2010 - 2:19 AM

      I completely agree with you Caroline. It is sort of a double standard to allow positive brandjacking and not negative. The case you brought up is just another example of negative brandjacking. The only reason Nestle even responded was due to the bad press they were getting. Had Greenpeace been spreading positive feedback, then Nestle would have just gone about their daily routines. Something has to change.

  5. #8 by Julia Rubel on October 10, 2010 - 8:34 PM

    In some instances, I think brandjacking could be a good thing for the company. In instances where there are “fan” pages on Facebook and groups dedicated to the company and products, the business can gain more supporters and improve its audience. I do not think it is ethical when a logo/slogan is being used unbeknown to the company and the people who are using trademark are making a profit. This is a copyright violation. I have seen cases on Twitter where people will set up fake celebrity accounts. This is not right either because that person could severely damage the credibility and reputation of that person.

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