Social media: love it, or hate it, it is becoming increasingly clear that Canadian businesses should not ignore it. Facebook now ranks with Google as the first and second most-visited sites in the world. Facebook’s own stats indicate that nearly 50% of Canadians spend at least one hour per day on the site.
And it’s not just the digital playground of the youth: more social media users come from the 35-44 age bracket than any other group. In fact, 61% of Facebook users are 35 or older; 64% of Twitter users are over age 35. In other words, a majority of social media users are people with money, and people who make decisions—the sort of people who fit the key client characteristics for many Canadian businesses. In this light, it is simply prudent practice for all businesses to take stock of their rights and opportunities in the social media context
Understanding how your brand is perceived in the social media milieu can take some effort—in part due to the structure of many social media sites. Many sites allow users to control what information is being shared with, or is visible to, other parties. For example, the amount of information available on a Facebook user’s webpage is highly limited until the owner of that page agrees to assent to a user’s request for “friendship”. Thereafter, the page owner can limit the types of information visible to certain groups of friends it has created. Thus, as Facebook and similar sites grow, the amount of publicly available information segmented into inaccessible silos likewise has the potential to increase. This makes it challenging to ascertain what is being said about a particular brand online. However, certain services have been launched in an attempt to address this issue, and businesses—particularly those with a consumer focus—may wish to actively monitor how their brand is being perceived and treated online.
As an even simpler step, businesses should take steps to secure their “username pages” on Facebook and other social media websites. Many social media websites allow users to claim “username pages” (eg. www.facebook.com/clarkwilsonllp) for use on the site. Since there is no cost associated with securing these pages, there has been somewhat of a digital username “land-rush” (similar to what was seen a decade ago in the domain name context) with third parties securing the username pages of unrelated companies and holding those pages in the hopes of securing some form of compensation for the name from the brand owner.
In fact, many of the world’s top brands are being impersonated on Twitter. This is not to suggest that those brands are not present on Twitter; many are (though many still aren’t!). Instead, it is likely they became Twitter users after a third party obtained the most obvious username page for the brand (@gucci v. @gucciofficial). Take Twitter user @BPGlobalPR—which, given the name, at first blush appears related to the well-known petroleum company BP. During the initial days of the Louisiana Gulf oil spill, the number of followers for this Twitter feed expanded exponentially, and now numbers nearly 200,000. However, the account is not controlled by BP; rather, the company controls the feed @BP_America (which has just over 18,000 followers).
Initially, BP took the tack of ignoring the @BPGlobalPR feed; however, after incidences of confusion both amongst consumers and the mainstream media, it had to adjust its position and take steps to publicly clarify that it did not control the @BPGlobalPR feed, and that comments made therefrom (many of which served to exacerbate the bad press BP was already receiving in the context of the Gulf oil spill) did not reflect the views of the company. Obviously, it is easy to see how incidences like these can have an impact upon a business’ goodwill.
In order to address the problems that were created by domain squatters in the domain name context, users and governing bodies worked together to institute uniform domain name resolution policies as a means to efficiently and expeditiously resolve disputes over the rightful ownership of domains. In the social media context, similarly effective policies have not yet had widespread adoption. Some social media websites’ IP policies provide that, in the event of a dispute over a username, the site may elect to deny both users the use of the name, and remove it from the list of available usernames for a defined period. This is obviously not an entirely satisfactory result as it serves only to delay the issue and does not allow the issue to be resolved with any degree of finality between the parties.
Additionally, the terms of service of some social media websites preclude the transfer of usernames in exchange for money or other consideration. Accordingly, for businesses who want to simply buy their way out of a problem (paying the username squatter in order to get control of the account) this may not be a viable option.
In each of these cases, parties may be forced to resort to costly and laborious litigation in order to obtain a satisfactory resolution of the issues.
Of course, all of this can be avoided if businesses are proactive in obtaining the username pages (including all possible variations thereon) before they can be snapped up by interlopers. Even if the business does not wish to maintain an active presence on a social media site, the username page can act as an effective placeholder redirecting visitors to the main website for the business, and providing address and other contact information.
In the event that the username page for you and your business has already been secured by a third party impersonating your business, or over whom you believe you have better and prior rights, you ought to review the terms of service of the social media website to determine the dispute resolution policies that might assist you. Additionally, you may wish to consult one of our lawyers who can help you understand the interplay between the rights afforded to you in the social media context, and the intellectual property rights you have acquired at law.
