How to protect your brand online. The social media questions fashion brands should consider first.

By Savannah Hardingham, Senior Associate K&L Gates

Facebook, Twitter, Pinterest, Instagram…the list of social media tools for the promotion of your fashion brand is ever increasing.  While social media is an effective and immediate way to reach your customers, there are some important considerations you should turn your mind to before embracing this marketing tool as some recent examples demonstrate.

In the recent Federal Court case between Leah Madden of swimwear brand White Sands Swimwear and leading swimwear brand Seafolly, Ms Madden was ultimately ordered to pay damages for the reputational harm she caused to Seafolly through posting comments on social media.

In order to avoid the potential pitfalls that come with the territory, we recommend that fashion brands consider the following questions before using social media to market their labels…


White Sands Swimwear was ordered to pay damages for the reputational harm she caused to Seafolly through posting comments on social media.

Is it really true?

As with all marketing, when using social media, brands need to ensure that all statements made in advertisements or marketing materials are not false, misleading or deceptive – whether these relate to pricing, content, quality or another aspect of the brand or its goods or services.  A good rule of thumb is to ensure that all statements can be objectively substantiated. What documents will you point to if the Australian Competition and Consumer Commission or a third party (such as a consumer or competitor) come knocking on your door querying the accuracy of your statement?

Recent case law shows that not only will a business be liable for the statements that it publishes, but a business can also be liable for content posted to its social media sites (such as Facebook, Twitter and blog sites) by third parties.  Businesses should have a process in place for the review of all content posted by third parties to its social media sites and ensure that any misleading (or defamatory – see below) content posted by third parties is removed as soon as possible.

Do I own it or have permission to use it?

The ownership of intellectual property is often overlooked in the context of social media marketing, but once again the same laws apply to social media that do to more traditional forms of advertising.  If you wish to use a video, a written piece or an artistic work such as a photograph, graphic or drawing, you need to ask yourself who created it and how did you get access to it?  If you or your business do not own the copyright or have a licence to use the item, the use could infringe the rights of the copyright owner and the creator of the work.

This approach also applies to trade marks owned by other businesses.  You must not use another’s trade mark in respect of your business’ products or services, including in a way that would be likely to confuse consumers as to the origin of such products or services. However, comparative advertising, when done appropriately, is one way you can refer to another’s trade mark without the likelihood of confusion.  If in doubt, seek legal advice!

Does it hurt someone else’s reputation?

If you publish or authorise the communication of content that injures the reputation of a person without good reason, you could be liable for defamation.  Defamation is a complex area of law but a good starting point is to carefully consider whether publishing a post or other material (including a link to a third party publication) might damage the reputation of someone else. As noted above, put in place a process for the review of all content posted by third parties to your social media sites to ensure that any potentially defamatory content is removed swiftly.

Make the most of promoting your brand through social media and the benefits that come with such an immediate form of promotion and marketing, but think about how to best achieve these aims with the above considerations in mind.



Savannah Hardingham


Christine Danos

K&L Gates can assist companies manage the legal risks of their social media marketing.

For more information please contact Savannah Hardinghan, Senior Associate, Intellectual Property; savannah.hardingham@klgates.com) or Lisa Egan, Partner, Intellectual Property; lisa.egan@klgates.com

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