A brand is the identifier for a business, goods or services. It may be constituted by several elements, including a logo, name, colours, tag-line, jingle or any special image that one would expect customers to associate with the company, its goods or services. A brand will usually also include intangible messages that the brand owner deliberately communicates to its audience.

Managing brands on social media outlets has become increasingly important and in some cases may be one of the most important tasks of the marketing and communications arm of various organisations. Knowing the legal parameters is likely to help organisations to respond to threats and to exploit opportunities.

Legal protection is readily available for most tangible aspects of a brand. It is important to any brand building and management strategy that ownership of the constituent parts of a brand be firmly established. The first step usually involves trade mark registration in the markets in which consumers are targeted. This is a relatively inexpensive process which is effective to establish ownership of a name, logo or tag line from the date of application.

Other legal measures for protecting brands require enforcement action on a consistent basis. However, these other measures are most effective when the organisation develops a clear branding image and infringement strategy. Such a strategy should be consistently included in celebrity endorsement agreements, talent agreements for advertisements, sponsorship agreements and social media management arrangements.

Following is a brief outline of some of the other legal claims which may aid in the protection of brands, generally. Understanding these legal claims can assist organisations and individuals to identify when their brand is being threatened on social media and may inform the response.

The law of passing off may protect unregistered trade names and get up. Where the trade name or trade dress has a reputation in the marketplace (let’s call it ORIGINAL Brand) and later Brand COPYCAT tries to deceive potential customers into thinking that ORIGINAL Brand and COPYCAT are related brands or are one and the same, usually with a view to attracting sales, there may be a claim for passing off. Where ORIGINAL Brand is able to demonstrate that it has suffered or is likely to suffer loss as a result of the actions of COPYCAT, the court can grant a remedy. Such remedy may include an injunction to prevent further infringement and monetary compensation.

The commercial value of the image and likeness of celebrities, including musicians, performers, sportsmen and sportswomen is well recognised in law all over the world as the tort of misappropriation of personality. There have been cases outside of Jamaica in which non-famous persons have sought to establish this tort and we are yet to see how the law will treat with this in Jamaica.

Defamation is the publication of a statement which reflects on a person’s reputation and tends to lower him in the estimation of right thinking members of society generally or tends to make them shun or avoid him. Defamation may be in the form of libel or slander. A libel is defamation in a permanent form, such as e-mail, newspaper publication, Facebook post, radio and television broadcasts, etc.

There may be circumstances where a person publishes a damaging statement which is not defamatory. If the statement is false and was published with some malice, and as a result the person who is the subject of the statement suffers loss, there could be a cause of action for malicious falsehood. Malice is usually indicated if the publisher knows that the statement is false or if he is reckless in making the statement.

Therefore, where an organisation is concerned about a post, tweet, domain name registration, or user name of a third party, the organisation may assess how the claims mentioned above may assist. The organisation may ask, “has there been a trademark infringement, a passing off, defamation, malicious falsehood, misappropriation of property or impersonation?”

Effective brand management should include legal counselling and should not be restricted to the marketing department.

Andrea Scarlett-Lozer is an Associate at Myers, Fletcher & Gordon and is a member of the firm’s Commercial and Intellectual Property Department. Andrea may be contacted via andrea.scarlett@mfg.com.jm or https://www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.