Yes, they can be liable for trademark infringement.
An “influencer” a “new” form of social media marketing, in my time we called them “paid spokespersons”, is someone with a lot of followers on social media who endorses or promotes products or services by encouraging followers to buy the brands they promote.
By wearing a product or writing a blog with positive review about it, the influencer is bringing awareness to the brand and reaching potential new customers.
What happens when an influencer promotes or endorses a brand that causes confusion as to the source of the product or the service with another brand?
An influencer can be liable for direct infringement, contributory infringement, or false advertising, and other causes of action.
Under the “direct infringement” theory, an influencer who promotes a brand could be liable when the influencer uses, without authorization, a registered mark on or in connection with the sale, offering for sale, distribution or advertising of goods or services that is likely to cause confusion, or to cause mistake, or to deceive as to the origin of the products or services.
Under the “contributory infringement” theory an influencer could be liable if the influencer ‘intentionally induced’ the primary infringer to infringe or continued to supply an infringing product to an infringer with knowledge that the infringer is mislabeling the particular product supplied.” Under this theory supply of a favorable product review in a blog could be construed as contributing to the infringement.
Under the “false advertising” an influencer could be sued if it helps to disseminate a statement “which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading.”
As brand owner what can you do to avoid these types of situations? Do a trademark search before creating a new brand, register your brand, policy the internet for potential brand infringers and pursue them as necessary, and make sure the influencer is not promoting competing products or services.
As influencer before endorsing or promoting a brand, make sure the owner has registered the mark, research the brand and the company you want to endorse or promote, and make truthful and honest statements about the brand.
I have helped countless businesses protecting their brands and establish relationship with influencers. I’d like to help you too by protecting your trademarks and developing contracts and strategies to properly use influencers to promote your products or services.
