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Influencers: Could You Be Liable for Trademark Infringement? California Court Says “Yes”

Social media influencers have become a powerful force in the marketing world. With millions of followers, they can reach a large and targeted audience for brands of all sizes. However, this type of marketing comes with some risks, including potential liability for trademark infringement.

In a recent case, a California court ruled that model and actress Molly Sims could be liable for trademark infringement for promoting an eyebrow product called “Brow Defining Boost” created by Rodan & Fields. The plaintiff, Petunia Products, Inc., claimed that Sims' conduct infringed on its trademark, BROWBOOST.

To prove a trademark infringement claim, the plaintiff must show that the defendant used the plaintiff's trademark in commerce, and the use was likely to confuse customers about the source of the product. In this case, the court found that Sims' post could be considered a paid advertisement because it contained a link to Rodan & Fields' website where customers could purchase “Brow Defining Boost.” Additionally, the court found that Rodan & Fields' eyebrow products were similar in name to BROWBOOST and marketed through similar channels.

As a result of the court's ruling, Sims could be held liable for damages caused by the trademark infringement. This could include lost profits, damages for customer confusion, and attorney's fees.

This case is a reminder that social media influencers can be held liable for trademark infringement. To avoid this risk, influencers should take steps to ensure that they are not using any trademarks without permission. This includes conducting due diligence on the brands they work with and verifying that the brands are not infringing on any other trademarks. Influencers should also be careful about the language they use when promoting products, and they should avoid making any claims that could be interpreted as false or misleading.

Brands that work with influencers also have a responsibility to protect their trademarks. This includes providing influencers with clear guidelines about how to use trademarks and monitoring influencers' social media posts for any potential infringement. If a brand becomes aware of a potential infringement, it should take steps to promptly address the issue.

By taking these steps, both influencers and brands can help to protect themselves from trademark infringement liability.

Tips for Avoiding Trademark Infringement

If you are a social media influencer, here are some tips for avoiding trademark infringement:

  • Do your research. Before you promote a product, be sure to do your research and make sure that the brand does not infringe on any trademarks. You can use a trademark search engine to help you with this.
  • Be careful about the language you use. When promoting a product, be careful about the language you use. Avoid using any trademarks without permission, and avoid making any claims that could be interpreted as false or misleading.
  • Get it in writing. If you are working with a brand, be sure to get everything in writing. This includes a contract that clearly outlines the terms of your relationship and the responsibilities of both parties.
  • Consult your lawyer! Before publishing, run things by a lawyer who understands intellectual property and influencer marketing law.

By following these tips, you can help to protect yourself from trademark infringement liability.

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