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Take Down Policies and Social Media Sites

Once a trademark owner has identified infringing content on a social media site, an assessment must be made concerning the steps the trademark owner should take. A good starting point is to consider the intellectual property policies of the social media site in question. Frequently these policies will address both copyright and trademark claims.


Amazon, eBay and Alibaba offer detailed programs. In addition, Google has a policy that allows for the removal of web pages selling counterfeit goods from Google search results. To initiate the removal process, brand owners or their authorized agents must submit a complaint.


Copyright Claims

The copyright policy of most sites will likely comply with the US Digital Millennium Copyright Act (DMCA). The DMCA creates a safe harbour for social media site operators against copyright infringement liability, so long as they meet specific requirements. The requirements include promptly blocking access or removing infringing material when they receive notification of an infringement claim from a copyright holder or the copyright holder's agent. There is also a counter-notification provision that offers social media site operators a safe harbour from liability to a user when the user claims that the material in question is not infringing.


The DMCA can be very helpful, but it does not apply to trademarks unless a design version of the trademark, which is protected by copyright, is the subject of the complaint.


If a site is limited to Canada, it may not comply with DMCA. However, a similar type of policy may be available for the site.


Trademark Claims

The trademark claims policies are designed to avoid potential liability and involvement of the social media site in third-party claims. Such policies may also give effect to the social media website operator's own policies regarding intellectual property. Because there are no direct costs and provide an effective remedy, they can be a trademark lawyer's best friend.


The most popular social media sites have such policies, and it makes sense to look at the specific policies for these sites. While some sites may not have a policy, they may still consider such claims.


If you have questions, please contact me at mckeown@gsnh.com.


John McKeown

Goldman Sloan Nash & Haber LLP 480 University Avenue, Suite 1600 Toronto, Ontario M5G 1V2 Direct Line: (416) 597-3371 Fax: (416) 597-3370 Email: mckeown@gsnh.com

These comments are of a general nature and not intended to provide legal advice as individual situations will differ and should be discussed with a lawyer.

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