In this age of smartphone cameras and hashtags, an impromptu remark or a right place-at-the-right-time snapshot can “go viral” and create instant and immense goodwill. Businesses today use social media as a tool to promote and exploit their brands, and to reach an audience that is simultaneously bigger and better targeted. They should be wary, however, when seeking to appropriate or capitalize on pop culture references, and understand that there can be unintended consequences. The following cases are cautionary reminders that a business needs to be vigilant when adopting promotions or trademarks that incorporate words, slogans or images from pop culture. Trademarks, copyrights, right of publicity and public relations issues all must be cleared before filing a trademark application or kicking off a new advertising campaign.

Intellectual property issues have always posed a risk in advertising campaigns. The time, money and effort that it took to create and develop a traditional ad campaign usually meant that everything was reviewed and proper clearances were obtained. Content that arguably infringed the rights of another would usually be discovered and changed before publication. The use of social media in advertising, however, has dramatically shortened the time frame in which a company can review and clear the content of its message. It is crucial that companies develop a system for such review, because the risk of intellectual property infringement still exists and is perhaps even greater...

Originally published in the Orange County Business Journal, October 17-23, 2016.