What you need to know about brand perception and trademark applications

4 minute read
11 March 2016


Brand perception has always been important to businesses. Now that social media has become one of the primary ways people access news, brand owners must be aware of how they are perceived across the different platforms that they use to manage their identities. Stories are now likely to go viral online through social media (Facebook, Reddit, Twitter, etc.) hours or days before they hit mainstream news.

Brand owners should be aware of how trademark applications can impact the perception of their brand by the public. Once a business applies for a trademark, the application is available to the public in short order. Occasionally, the news that a certain business is applying for a certain mark will catch the public's interest, in some cases in an undesirable way.

This happened recently to the Fine Bros (Benny and Rafi Fine). The Fine Bros are successful on-line producers, creators, and writers and have created and produced a number of YouTube channels and award winning on-line shows. They are also well known for their "reaction" videos. Reaction videos are a popular video format where people are introduced to something for the first time and their reactions are filmed and posted to YouTube.

At the end of January 2016, social media, beginning with Reddit, caught wind of the Fine Bros' trademark application for REACT and the recently announced licensing program for their particular format of reaction videos. The online community interpreted their actions as an attempt to monopolize the popular reaction-video format generally and to stop anyone else from using the word "react." Despite stating that they intended to license only the format of their videos and not the "react" genre generally, the Fine Bros had already developed a reputation for claiming that they owned the video format. Other YouTube content creators reported that their reaction videos had been taken down by the Fine Bros through the YouTube claim system, and in 2014, controversy arose when the Fine Bros claimed that Ellen had used their reaction video format on her popular TV show.

By the time the Fine Bros responded to the allegations, the damage had been done. Over the course of three days, the Fine Bros lost over 400,000 of their 14 million subscribers. More importantly, the Fine Bros' total view count (which drives their revenue based on the advertisements presented alongside their videos) was down 27% at the end of February 2016. To appease the online community, they abandoned their business plans and their nine pending US trademark applications, including for the mark "REACT". The entire Fine Bros saga occurred over the course of a few days and was done before it reached mainstream media.

In the last year there have been instances of well-known brands suffering a similar response to their trademark applications. Examples include the ALS Association and Taylor Swift. The ALS Association filed applications for several marks containing "ICE BUCKET CHALLENGE" when that form of fundraising became popular in summer 2014. Taylor Swift filed applications for some of the song lyrics in one of her albums, including "THIS SICK BEAT". The ALS Association abandoned its applications in response to the public backlash, whereas Taylor Swift has maintained her applications despite facing some criticism online.

Social media is particularly pervasive when a story goes viral; the speed at which the information (or misinformation) spreads makes it difficult for a business to react before lasting damage is done. The online community tends to be reactionary and responds to "click-bait headlines" reflecting their fears. In the case of trademarks, this fear is usually that the business is trying to secure a monopoly for use of a particular word or phrase.

When applying for trademarks, brand owners must be aware that the process is public and that the internet is watching. The potential reaction of customers, and the public in general, should be a consideration, especially in instances where online backlash could have a significant negative impact on commercial interests. The easier it is for the consumer to un-follow, un-like, or un-subscribe, the more vulnerable the business will be.

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