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The perils of 'brandjacking' on Facebook
Camaraderie is a big selling point for SacFit, a Sacramento running and walking club. On their very first day, members are assigned to pace groups and promised "no one trains alone." So when founder and director Kenneth Press announced on Facebook that communication between groups was henceforth banned, some runners were pretty steamed.
Several members confronted him over the phone. Why couldn't they communicate? Who was he to tell them who they could talk to?
Press has a vivid recollection of the first call last May. It was a Monday morning, and he had no idea what the person was talking about. "I didn't post anything," he responded.
Press wasn't able to log on to Facebook right away, so he asked the person to send him a screen shot. They read the posting over the phone together. It was sent from a page that looked like Press's personal Facebook page. But it wasn't. "This is not me," Press protested.
The club's leader remembers that moment: "Immediately you think, 'My identity has been stolen.'"
It had taken Press six years to build SacFit. He started it after years spent training with clubs that fell short of his expectations. He'd worked to build the nonprofit into a club that offers a good value.
Members pay about $100 per training season to receive individualized coaching, peer support, nutritional counseling, and discounted physical therapy, if they need it. Suddenly, though, it seemed as if it all might be in jeopardy.
Press is the face of SacFit. His personal reputation is inextricably tied to the club's. And SacFit, which Press says has always been highly regarded by members, relies almost exclusively on word-of-mouth promotion.
So as he dealt with this intrusion, which felt like sabotage, he had to be careful. He worried that public conflict might put a damper on members' enthusiasm.
Over the next few days, he realized how easy it is to create a fake page, and he had a hunch it was a disgruntled former coach. But he didn't want to jump to conclusions. So he hired a computer forensics expert, who estimated it would take two to four weeks to make a positive ID. It took a lot longer, and Facebook still hasn't taken down the page.
Ken Press has a lot of company out there. JPMorgan Chase & Co. and Wal-Mart Stores Inc. are only a couple of the corporate brands that have been ambushed in the Internet age.
As technology evolves, new abuse tactics emerge. Companies have to monitor not just the sale of counterfeits in the physical world, but the online hawking of such wares as well. They must also watch out for trademark abuse within the domain name system, known as cybersquatting; complaints posted to gripe sites; and "brandjacking." All of these attacks can harm brands and a company's reputation.
Yet not all threats are created equal. Erik Gordon, director of the Zell Entrepreneurship and Law Program at the University of Michigan Law School, says that in-house lawyers need to choose their online battles wisely.
A former in-house lawyer with Great American Cookie Company Inc., Gordon says corporate counsel have to consider both what's good legal advice and what's sound advice for the business. "If you start shooting off missiles," he says, "you make your company look like big jerks."
Deciding whether to take action depends on whether brand abuse runs afoul of the law, and what effect it's likely to have on consumers. The first thing to keep in mind is that "there's no cause of action for hurt feelings," says Gordon. "Companies can't waste their time on mere expressions of an opinion," he says.
The big issue is whether consumers are likely to be confused about the origin of the online statements.
"If someone is pretending to be you," Gordon says, "it could be trademark infringementif it's not just a spoof."
Take, for instance, online posts attributed to JPMorgan Chase CEO Jamie Dimon. "People post as Jamie Dimon all the time," he says, so when people see one, "everybody knows Jamie Dimon didn't write that."
Then there are sites that clearly are not impostors, even though they use a company's name. One is WalmartSucks?.org. Readers are unlikely to think that comments posted there are sanctioned by Wal-Mart Stores Inc. Just in case they do, Kenneth Harvey has posted this disclaimer across the top of the site he has administered for more than a decade: "this site is not affiliated with wal-mart in any way (in case you're one brick shy of a load, and need that explained)."
While such attack sites have the potential to cause brands harm, they are generally protected by the First Amendment, and most companies choose to ignore them. Perkins Coie partner William Rava said in an email that although companies respond when appropriate, they view those sites as a cost of doing business. "The real problem for brands isn't complainers, but true impostors," he says.
Impersonating Press on Facebook was a relatively easy thing to do. Press says his impostor simply "cut and pasted my picture into a fake Facebook account."
That was it. It's a violation of Facebook's policies to use a fake name or false identity. But last summer the site reported that almost 9 percent of its active user accounts were either duplicates or false. According to a Facebook spokesperson, the company has since made improvements to its site integrity systems.
Press worked with the administrator of SacFit's Facebook pages, his forensics expert, and a lawyer to try to get Facebook to disable the fake account. He named John Doe defendants in a lawsuit for defamation and violation of a new California law against online impostors and cyberbullying.
Nearly a year after that stressful day, the fake site still exists. Asked why the impostor site hadn't been removed, Facebook's spokesperson declined to comment. He referred to the company's online help center, which contains instructions for users who want to report impostors.
The delay may be explained, in part, by the fact that Facebook isn't required to do anything. Even when posts contain facts that are defamatory to a brand, Gordon says, federal law shields Facebook and blog sites from liability. Businesses may not have much recourse.
"What's irritating if you're corporate counsel," says Gordon, "is that the party you can hold legally responsiblethe person who actually posted the commentyou probably can't even find."
Press did find his alleged impostor, but the search wasn't easy. It took his expert not weeks but months to come up with Alan Capps, a former SacFit coach who Press says left on bad terms. Press suspects Capps tried to disrupt the club by tarnishing its founder's image. His name was added to the complaint in November. (Capps declined to comment and referred questions to his lawyer, Charles Bauer, who says he filed a general denial of all claims on Feb. 19.)
Press admits he's discouraged that the site is still up, but he's optimistic that he's finally on the path to resolution. It might have taken a little longer than he expected, but for the SacFit leader, it's not a sprintit's a marathon.
Shannon Green writes for Corporate Counsel, a Daily Report affiliate.