Influencer liability ruling opens door for direct infringement claims, but brands must tread carefully
August 30, 2021
By Victoria Arnold
“More influencers may be named as additional defendants in trademark infringement cases in future, warn Buchalter attorney Michael J Worth and shareholder Matthew L Seror. Therefore, brand owners may have to agree to indemnify their endorsers from these sorts of claims during sponsorship negotiations if they are to retain access to their target audience.
‘This is a far less practical or cost-effective solution for influencers who participate in a high volume of sponsorship deals,’ admit Worth and Seror. ‘Influencers may start requiring brands to indemnify them from these sorts of claims before agreeing to endorse or promote a brand’s products or services.’ ‘Brands may also have to exercise a greater degree of oversight on the posts that influencers are publishing on their social media platforms to ensure that they do not increase the likelihood of consumer confusion,’ the pair add.
‘Brands will probably want to exercise caution in taking any aggressive measures against influencers when trying to protect their trademarks,’ Worth and Seror state. ‘As the designation indicates, influencers often have significant influence over a brand’s target consumer pool. If a brand aggressively confronts an influencer, especially one who has inadvertently used an allegedly infringing mark, an aggressive approach may quickly backfire and cause a public relations nightmare, or even an adverse financial impact on the brand by offending a large number of its existing or potential customers. Indeed, many of those customers may be more sympathetic to the influencer’s situation than the brand’s position.’
‘Internet service providers (ISPs) will be hard pressed to take active measures to police and prevent any such conduct,’ Worth and Seror note. ‘They may be able to incorporate prohibitions of any such conduct into their terms of service, but ISPs are generally seen as a mere platform for passively hosting content and communications.’
‘Trademark or influencer associations should dedicate more resources to educating influencers and brands about the potential risks and legal pitfalls that come with social media marketing and brand sponsorships that involve the use or dissemination of protected intellectual property,’ Worth and Seror urge. ‘This type of education may ultimately be the most cost-effective investment to keep influencers and brands out of litigation.’”
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