When it comes to IP enforcement, companies on the cutting edge of technology often find themselves in a catch-22 situation. On the one hand, there’s more need for enforcement than ever as new technologies create new opportunities for imitation and even fraud, from crypto scams to AI deepfakes. On the other, enforcement itself is increasingly controversial. Aggressive tactics often provoke a PR backlash, and some user communities are wary of IP rights, especially in spaces that thrive on openness and decentralization, like Web3 and gaming.
Adding yet another layer of complexity, copyright law in the AI, Web3, and other spaces is still developing, creating even more uncertainty and potential for controversy. Relying on trademark rights is often more effective and avoids some of the pitfalls of copyright. Here are some tips for protecting your trademark rights in the current landscape.
- Register your core trademarks. You’ll need trademark rights to take down fake websites and social media accounts—many platforms will only accept takedown requests based on trademark filings. And even if you’re not seeing rampant misuse, filing applications for core brands plants your flag in the ground, ensuring no one else gets there first, and sends the message that you’re serious about protecting your rights.
At a minimum, you should consider filing for your company and core product names. But there are other possibilities, depending on your industry, use case, and budget. Logos, advertising slogans, or taglines—even website designs or game features—can be worth filing for if they’re distinctive enough, and if you’re concerned about copying. All of these may prove more valuable as AI-generated fake ads, look- and sound-alikes proliferate—potentially copying every aspect of a brand’s identity. That’s why it’s important that your core brands are distinctive enough to set you apart from competitors, but also accurately reflect your technology—you may run into both trademark and false advertising issues if you use a brand that’s potentially misleading (e.g. including “AI” in the name of a product that doesn’t use AI).
- Lock down key domains and social handles. Strategic registrations for domain names and social media usernames/handles help to create a defensive perimeter around your brand. Web3 and alt domains are especially relevant for companies in the blockchain, crypto, and other related spaces—they can link directly to a wallet and can be used to create a decentralized website where the owner has total control of all content. Brand owners may struggle to recover or take down these domains once they’re registered by third parties—some takedown mechanisms have been introduced recently, but the dispute resolution procedures available for traditional domains still don’t apply, and the owners are nearly always anonymous.
- Set boundaries. Draw clear lines around what you will and won’t go after, and then stick to them as consistently as possible, re-evaluating from time to time as your business evolves. Some enforcement is necessary to maintain trademark rights—at the very least, you should take action against any misuse of your brand that could cause serious harm, including phishing, fraud, or anything involving porn, malware, or illegal gambling. But for most, it’s not realistic to go after every unauthorized use—you can tailor your enforcement strategy to fit your particular space and resources.
- Involve your user base. Educate users about the need for brand enforcement and establish formal channels to help them identify and report brand misuse. Some companies have effectively crowdsourced brand monitoring to the user community, rewarding members for tracking down problematic uses.
Consider creating a royalty-free licensing program for user-created projects—authorizing them to use particular brands, and perhaps giving them some perks, in exchange for agreeing to use only for specific purposes and to comply with brand guidelines. Licensing strengthens your brand rights, while also giving users clarity about what they can do.
- Take a kinder, gentler approach. When someone crosses a line—especially if it’s a fan or community member—there are ways to resolve the problem without creating a PR backlash. If possible, reach out by phone—this often gets a more positive response than email, and avoids putting things in writing that could be misinterpreted or taken out of context. Respond on social media when necessary, but keep the tone friendly. Offer a reasonable phase-out period, and reward those who comply (perhaps with schwag or invitations to an event). Avoid sending formal demand letters with lots of legal citations—these typically aren’t effective and will just end up being posted on social media, triggering a barrage of angry responses.
New technologies will continue to create new IP enforcement challenges. As copyright and other areas of the law evolve, the right trademark strategy is more important than ever.
