Partner
Revision Legal partner, John DiGiacomo, presented at the Business Owners Speaker Series in Traverse City. He focused on how to minimize the risks of online marketing and social media for businesses. According to John, the biggest mistake companies make is not acquiring social media channels prior to launch. The second biggest mistake is not acquiring or claiming trademark rights on those social channels to protect your brand. Watch more below for the full discussion.
We’ve published previously on acquiring trademark rights on social media:
How to Trademark My Instagram Username
How to Claim Your Trademark as a Username on Twitter
How to Claim your Trademark as a Username on Facebook
Social media platforms have become indispensable marketing channels, but they also expose businesses to a dense thicket of legal risks that many business owners never anticipate until something goes wrong. Defamation claims, trademark infringement, copyright violations, employee privacy disputes, FTC disclosure obligations, and data privacy liability can all arise from routine social media activity. Understanding these risks before they materialize is far less expensive than litigating them after the fact.
The most fundamental social media risk for any business is failing to secure its brand identifiers — name, logo, and tagline — as usernames across every major platform before a competitor, a squatter, or a disgruntled former employee does. This is not merely an inconvenience; it can cause genuine consumer confusion and dilute trademark rights. Under the Lanham Act, 15 U.S.C. § 1125(a), a business can sue for trademark infringement if another party’s use of a confusingly similar mark in commerce is likely to cause confusion as to the source of goods or services. But litigation is expensive and uncertain, and prevention is almost always cheaper than the cure.
Most major platforms — Facebook, Instagram, X (formerly Twitter), LinkedIn, TikTok, and YouTube — have brand protection programs that allow trademark owners to report infringing usernames and accounts. However, these programs require that you hold a registered trademark, which is one of the strongest reasons to pursue federal trademark registration with the USPTO before or simultaneously with your social media launch. A registered trademark also gives you standing to file a complaint under the Uniform Domain-Name Dispute-Resolution Policy (UDRP) if a cybersquatter registers a domain that trades on your brand.
Businesses frequently post images, videos, and written content to social media without fully understanding copyright ownership. Using a photograph found through a Google image search, reposting someone else’s video without a license, or copying text from a competitor’s website can expose a business to copyright infringement claims under the Copyright Act, 17 U.S.C. § 501. Statutory damages for copyright infringement range from $750 to $30,000 per work infringed, and up to $150,000 per work for willful infringement.
Conversely, when customers post content about your brand — photos of your products, reviews, unboxings — your business may want to repost or repurpose that content. Doing so without obtaining an express license from the content creator, even if the creator tagged your brand or used your branded hashtag, can constitute copyright infringement. A brief, written permission request and confirmation is the minimum prudent practice before repurposing user-generated content.
The Federal Trade Commission’s guidelines on endorsements and testimonials, updated in 2023, require clear and conspicuous disclosure any time there is a material connection between an endorser and the brand being promoted. This applies not only to paid influencers but also to employees who post about their employer’s products, business partners who recommend services, and customers who receive free products in exchange for a review. The FTC has issued warning letters and initiated enforcement actions against both brands and individual influencers for inadequate disclosure, and civil penalties can reach into the millions of dollars for repeat or egregious violations.
Disclosures must appear in a way that is hard to miss — not buried in a string of hashtags, not disclosed only in a profile bio, and not omitted because the platform has a disclosure tool that few users notice. Businesses that run influencer campaigns should have written agreements with influencers specifying disclosure requirements and should monitor posts for compliance.
Employees who post about their employer — positively or negatively — create legal exposure on multiple fronts. Employees who disclose trade secrets, post confidential customer information, or make false statements about competitors can expose the business to trade secret misappropriation claims, privacy violations, and defamation liability. At the same time, the National Labor Relations Act protects employees’ rights to engage in concerted activity, including certain discussions of wages, working conditions, and employment practices on social media. Overly broad social media policies that prohibit all negative commentary about the employer have been found unlawful by the National Labor Relations Board.
A well-drafted employee social media policy threads this needle by prohibiting specific, identifiable harms — disclosure of trade secrets, harassment, false statements of fact — while preserving employees’ rights to engage in protected concerted activity. The policy should be reviewed by employment counsel before implementation and updated regularly as the NLRB’s guidance evolves.
Social media marketing frequently involves collecting personal data about followers, contest entrants, and customers. State privacy laws — including the California Consumer Privacy Act (CCPA), the Virginia Consumer Data Protection Act (VCDPA), and a growing number of similar statutes — impose notice, consent, and data subject rights obligations on businesses that collect personal information, including information collected through social media platforms. Businesses that run social media contests, sweepstakes, or lead generation campaigns must ensure their data collection practices comply with applicable state privacy laws, as well as the platform’s own terms of service.
The legal landscape surrounding social media for businesses is complex, rapidly evolving, and unforgiving of missteps. Whether you need to protect your brand on social platforms, implement a compliant employee social media policy, respond to an infringement claim, or structure an influencer marketing program, the attorneys at Revision Legal are here to help. Contact us using the form on this page or call us at 855-473-8474.
One frequently overlooked risk for businesses using social media is the contractual relationship with the platform itself. When a business creates a Facebook page, an Instagram account, or a YouTube channel, it accepts a platform terms of service agreement that governs every aspect of how that account can be used. These terms reserve the platform’s right to suspend or permanently terminate an account for violations of community standards, advertising policies, or intellectual property rules — often without advance notice and often without any meaningful appeal process.
For businesses that have built significant followings, revenue streams, or customer service operations on a social media platform, account termination can be genuinely catastrophic. There is no breach of contract remedy available to a business whose account is terminated pursuant to the platform’s terms — the terms typically give the platform sole discretion over account management decisions. This is why businesses should treat every social media account as a leased asset rather than owned property, and should simultaneously maintain owned channels — primarily a company website and email list — that are not subject to platform control.
Advertising on social media platforms raises additional legal risk. Misleading advertising, unsubstantiated product claims, and failure to make required FTC disclosures can draw both platform enforcement and FTC regulatory scrutiny. Businesses should review all social media advertising content with counsel before launch, particularly for regulated industries including financial services, healthcare, and dietary supplements where specific disclosure obligations apply. Contact Revision Legal for guidance on social media legal compliance using the form on this page or call us at 855-473-8474.
Image credit: melodievj10
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