These days, the coronavirus is all over the news. Every day we are overwhelmed with numerous articles about new points of view or new measures. In addition, people are increasingly inclined to use social media to make their voices heard. For young people this often results in posting funny memes or other sarcastic messages to mock all kinds of famous brands. Especially the Corona beer of the beverage company AB Inbev is an easy target. Of course, this all seems very innocent, but for the trademark owners among us, this can have catastrophic consequences. In this blog, we will examine what this legally means for a trademark owner and whether opposition to this is possible.
Degradation of the reputation
We cannot ignore the fact that if people mock a brand on social media, this makes the products and/ or services look bad, with negative consequences for the sale of such products and/ or services. For instance, in the 80’s, the candy brand Ayds was confronted with strong losses after the outbreak of the deadly disease with the same name. Result? Eventually the product disappeared from the market. Whether the same fate will be attributed to the famous Corona beer is doubtful. Of course, this does not alter the fact that they can also feel the negative impact of sarcastic ‘Corona memes’.
Posting such mocking messages clearly affects the reputation of your brand. Legally, we refer to it as degeneration of your brand. This is the case when the messages make such an impression on the public that it reduces the appeal and image of your brand. But what exactly can you do about it, as a trademark owner?
Conditions for opposition
Trademark law offers a concrete solution in case your trademark is used in a way that damages your image. In accordance with the Benelux Convention on Intellectual Property, any trademark owner may oppose the use of his trademark by third parties, if there is a harmful influence on the image of the trademark. Before you can make use of this right, a number of conditions must be fulfilled.
Logically, you will, in the first place, only be able to invoke this right if you are in possession of a registered trademark. Holders of a national (Belgian) as well as holders of a Benelux and Union trademark can invoke this ground of opposition.
A second condition is that the use of your trademark must be outside the scope of trade. This means that your trademark has been used, independently of any commercial activity. So, the third party did not want to make a profit. This is of course always the case when someone posts a message on social media to make a mockery of your brand.
Subsequently, you must be able to prove that the user had no valid reason to use your trademark. If you have given your explicit permission, opposition is no longer possible. Jurisprudence generally accepts that artistic freedom and freedom of the press can be considered as a valid reason for such use. Please note that this will only be considered as a valid reason as long as it does not cause damage to the trademark in question. Because of the fact that ‘memes’ and other sarcastic messages usually have the intention to mock the trademark (and cause damage), this will not be considered as a valid reason.
Finally, the reputation of your brand always has to be affected. This means that you have actually suffered damage as a result of the ‘negative’ use. This is, for example, the case when the sales figures decrease because the public makes a ‘negative’ connection with your trademark.
Do you notice that your brand is being mocked on social media because of the Corona virus or some other reason? Do you experience this as an attack on the reputation of your brand? We are happy to help you. With our many years of expertise in trademark law, we can assist you in starting infringement proceedings. You can always contact us via firstname.lastname@example.org!
Written by Helena Depaepe, Legal Adviser deJuristen, Caithlyn Ramette, Trainee deJuristen, en Kris Seyen, Partner deJuristen