IP on IG: marketing your business without infringing on another’s rights
Effective business marketing is a cornerstone of most successful companies
Effective business marketing is a cornerstone of most successful companies. When you’re trying to run a profitable business, intellectual property (IP) rights aren’t always at the forefront of your mind. However, not honoring these rights can have serious legal and financial consequences for your business.
It doesn’t matter if the violation was unintentional or what platform it occurred on. Using another party’s IP on social media or anywhere on the internet for advertising can still have negative implications, just as if it were used in another arena.
Intellectual Property Protections
You can’t avoid IP infringement if you aren’t aware of what protections apply. To use material properly, you need to know the different types of IP and their protections. No matter their size, companies should focus some time and energy on building a robust understanding of the intellectual property process. The major types of IP protections you might encounter include:
Copyrights protect the rights to “original creative works,” such as literature, music drama, video, computer software, and architecture.
Copyrights are registered with the Copyright Office of the Library of Congress. Registration isn’t required to own a copyright. Creating the original work often signals ownership. However, you secure greater, more effective protection by registering your work.
Trademarks protect branding features like symbols, words, and phrases that identify companies, services, and goods. Registering a trademark with the state or federal government is one of several effective ways to protect it.
Before your company uses a new trademark in the marketplace, it’s critical that you conduct a search to ensure there isn’t another trademark already registered or being used in commerce, which is called a “common law” trademark that conflicts with or is surprisingly comparable to your new trademark. If you don’t, your use of the trademark can come to a standstill under the law. Using something similar to an already protected trademark can cost you valuable time and even substantial expense.
Trade secrets protect proprietary information such as formulas, methods, techniques, data, and programs. Trade secrets give one party a financial advantage over competing interests. If a business owner has taken reasonable steps to protect certain information, it could be classified as a trade secret. Nondisclosure agreements (NDAs) are the most common and most effective way to protect trade secrets. Courts have repeatedly echoed that the use of NDAs is the most significant way to maintain the secrecy of confidential business information. C.R.S. § 7-74-101 is Colorado’s version of the Uniform Trade Secrets Act (UTSA).
How to Avoid IP Violations
Many experts recommend beginning by checking the U.S. Patent and Trademark Office database to ensure a brand or product name, design, or logo isn’t already registered. Business owners can also take the following steps to prevent inadvertently violating another person or business’s IP rights:
- Generate Original Images or Music for Advertisements
Even small businesses can turn to in-house staff or freelancers to create original content, graphics, music, and more to use in their marketing efforts.
However, if you do use freelancers, it’s imperative to include a clause in the contract stating all rights to created materials belong to your business. Otherwise, freelancers could plausibly register the material themselves and file a lawsuit against your business for IP infringement.
- Acquire the Necessary Licenses from Copyright Holders
The easiest way to protect your business is to request permission to use the work from its original creator. This can be as simple as messaging another user or business and asking for permission. Keep in mind that the best way to protect your business is to have a formal agreement signed by both parties.
If you plan on using registered material, it’s vital to get the necessary licenses and explicit, written consent from the content’s owners. Without a license and consent, you should never even think about using protected content.
- Use Royalty-Free Media
Royalty-free media can be found online, and it isn’t subject to the same limitations as other types of IP. Royalty-free media can be used freely without consequence. Keep in mind that it’s best practice to give credit to the creator wherever their content is used.
- Ask for Audience Media
Some companies have found success in asking their audience for media. This step not only avoids IP infringement but can help grow followers. Most followers enjoy user-generated content even more than they enjoy yours because it’s authentic and unpredictable.
- Be Careful with Livestreams
Livestreams can sometimes get businesses into trouble. Suppose music is playing that you don’t own a copyright to, or you use another company’s slogan by accident. In that case, it could end with IP infringement.
Determining if Information is Okay to Post
To determine if something is okay to post or use on social media or anywhere on the web, or if it could be an IP violation, ask yourself the following questions:
- Are you familiar with the site’s or app’s Terms of Service (TOS), and if so, will your post adhere to them?
- Are you using trademarks in a manner that won’t cause consumer confusion or dilute the famed mark of another company?
- Are you being truthful and using the minimum information necessary to reference the particular trademarked good or service?
- Did you create the content you are sharing?
- Do you have the owner’s permission (ideally written) to use the content?
Unless you can answer these questions affirmatively, you could be in danger of IP infringement. You should speak with a qualified IP lawyer before proceeding.
How IP Attorneys Can Assist Business Owners with IP Marketing Plans
Businesses can spend a lot of time developing a product or service. They should spend an equal amount developing an IP strategy to ensure the maximum return on their IP investment.
To help protect your IP and ensure that you don’t violate IP laws by using someone else’s material, it’s best to have a seasoned IP attorney on your side. Your legal counsel can perform the necessary legal searches to identify potential conflicts and problems that might arise while providing you peace of mind and ultimately saving you time and expense.
Aaron Atkinson and Doug Griess of Hackstaff & Snow, LLC, are top Denver business attorneys with expertise spanning various industries. Specializing in business law, litigation, intellectual property, tax law, and dispute resolution, Aaron Atkinson and Doug Griess offer an in-depth understanding and knowledge of general corporate rules and regulations and are a trusted resource for business owners throughout Colorado.