What to do if your brand is you

28th Jun 2021

Influencers and celebrities have now become 'brands' in their own right, but building a brand around your name and personality does not come without risks, as Chartered Trade Mark Attorney Laura Morrish explains.

Social media influencers, including many celebrities, can make vast amounts of money online. Yet, many do not consider the IP implications of using their name as their brand name when first setting up.

Taking the time to consider and clear your brand name, social media handle and associated rights up front, can help to protect your investment and monetise of your following later down the line.

Getting started

When first considering your brand name, whether it is your own name or a chosen name, you should explore its availability across all of the platforms that you plan to use, as well as the trade mark register to ensure that your use would not infringe a registered right in the area of interest to you.

Ideally, all your social media handles should match and be aligned with your trade mark or your brand name. This allows you to strengthen your reputation in that name or mark and create a clearly defined brand, making it easier for followers to connect with you across all platforms.

What can you protect?

Your name

More and more celebrities and influencers are bolstering the strength of their name by registering a trade mark for it.

For instance, Donald Trump has a registered trade mark for his own name, as does Taylor Swift, Rihanna, Victoria Beckham, Justin Bieber, Beyonce, Katy Perry and Kylie Jenner.

As well as celebrities, social media influencers, YouTubers and bloggers are realising the value in owning a registered right for their name and amongst those with UK registrations are Zoella, Mother Pukka, Marcus Butler and LAD Bible.

The challenge with applying for a trade mark for your name, though, is that you are required to specify the nature of the goods/services that you require protection for, which can be difficult to qualify, particularly when you are just starting your brand.

Depending on the nature of your activities, it may be relevant to include services such as the publication of blogs and texts and provision of entertainment services, as well as goods and services in area of particular interest to you, and which might form the basis of your content, for example: cosmetics and advisory services relating to these, if that is what your content will focus on.

For celebrities, it might be relevant to include categories of goods which may offer potential from a licensing perspective, as well as the area in which your own business or fame is focussed (e.g. production of music, clothing etc.).

Your image and personality

Another source of protection that may be applicable in the UK is passing off. Unlike a registered trade mark or design, this type of protection can extend past the mark or image itself to protect the goodwill of its original source.

This common law tort may be used by a celebrity, or well-known influencer, to prevent a false representation that they have endorsed a particular product, service or brand. In order to bring such a claim, the celebrity must have a sufficient amount of goodwill in their name, which is usually shown by evidence that they have previously used their name, image or likeness for a similar type of endorsement activity.

A clear example of how these rights have been enforced in ‘personality rights’ cases can be seen in the Eddie Irvine case against Talksport whereby marketing materials which included an altered image of Irvine amounted to false endorsement, and thus a successful claim.

Another example is the infamous Rihanna case against Topshop which arose when the retailer used Rihanna’s image on clothing it was selling.

Copyright could also be a relevant means for protection for celebrities and influencers. An individual can assert copyright in a photograph or film taken of themselves, or images that they have put together and posted online.

In addition, the way in which the content is presented and any text that accompanies it could be classified as a ’work’ and worthy of copyright. However, this has yet to be tested, and owning a registered right, such as a trade mark, generally provides a more sound basis for complaint.

Proving you’re the real you

When you have sought trade mark protection for your name, efforts should be made to monitor social media platforms in order to avoid infringement of your trade mark and impersonation.

Most social media platforms have developed a verification process, e.g. granting a little blue checkmark to official accounts, in response to the rampant impersonation on these platforms, with individuals creating imposter accounts and presenting themselves as a celebrity or influencer, leading to genuine confusion of both fans and consumers.

Even with official pages in place, as it is free and easy to quickly set up a social media account, potential infringers or squatters can cause significant damage to celebrities and influencers by creating fake accounts or usernames, name squatting, misappropriation of trade marks or copyright and the sale of infringing or counterfeit goods.

Fortunately, most social media platforms have policies in place to protect IP rights and their owners. These policies are provided under the terms of use, which all users must agree to. If a user breaches the terms of these policies, the platform can take steps to remove the infringing content or, for serious or repeat offenders, can disable or terminate the user’s account.

Although there are internal measures used by social media platforms to detect some types of infringement (e.g. copyright or counterfeit products), these general safeguards can fail to protect trade mark owners from the specific issues faced by use of their image, or copycat profiles. It is always important that trade mark or brand owners, or their representatives, monitor social media platforms carefully and take appropriate steps to have offending content or profiles taken down.

Takeaways

• Choose your brand name or social media handle carefully, to create a strong brand that can be protected and a consistent brand image across all platforms.
• Seek protection early – you can always extend protection into other areas if your activities diversify.
• Be vigilant in monitoring third party activities and proactive in enforcing your rights on social media.

Laura Morrish is a Chartered Trade Mark Attorney at Novagraaf UK.

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