27 Feb
2020

Most TikTok influencers at risk of brand infringement; urged to consider trademark protection

  • Research from WTR finds few TikTok stars have registered trademark protection
  • TikTok is growing rapidly, with its most popular followers striking lucrative deals
  • Expert suggests IP professionals must knowdifference between Instagram and TikTok

Chinese social network TikTok has become a global phenomenon over the past 12 months, with more than 600 million active users. However, research from WTR reveals that the vast majority of TikTok’s most popular content creators – many of which are expected to make millions of dollars a year in advertising, sponsorship and merchandise revenue – have not taken any steps to protect their brand assets.

Owned by Chinese technology company ByteDance, TikTok is a platform for the creation and sharing of short videos. It launched in China in September 2016 (originally named ‘Douyin’) and was subsequently released overseas (rebranded as ‘TikTok’) one year later. Its growth has been gigantic and rapid – the app was downloaded over 738 million times in 2019, with an estimated 625 users now active on the TikTok platform.

With this rising popularity comes an increase in risk for brands, and WTR has written before about why IP practitioners must add TikTok to their social media enforcement radar. We have also looked at why major companies should consider at least securing their brand names on the TikTok platform, and how some brands have already amassed large followings – Red Bull, for example, currently has 3.7 million followers on TikTok, while the NBA has 9.6 million.

The most followed accounts on the TikTok platform, though, are the young content creators that have amassed audiences in the tens of millions. Business Insider recently identified 38 of the most popular TikTok stars, many of which have posted “lip-sync, dance, and produce comedy skits” to “grow into high-profile influencers”. The most popular user is 17-year old singer Loren Gray, who has nearly 40 million followers at the time of publication. Incredibly, according to new research, Gray “could charge as much as $197,000 per [promotional] post” – and she has already attracted partnerships with major brands including Chipotle. It is not just humans with massive followings, either: Jiffpom is a Los Angeles-based Pomeranian dog with over 20 million followers and, according to the same study, “could earn $100,000 per [promotional] post”.

As well as working with major brands, many of these content creators are crafting their own personal brands through merchandise and entertainment deals. However, as the table below reveals, most well-known TikTok stars do not appear to have any registered trademarks. There are exceptions – including, perhaps surprisingly, Jiffpom the Pomeranian dog, with the channel’s owner Cutelife Inc securing a registered US trademark for JIFFPOM in September 2019 (with an adorable specimen of use). Another example is Annie LeBlanc, who secured the registration of her channel name BRATAYLEY back in 2017. Popular duo Cash and Maverick Baker secured registered protection at the USPTO for their channel name and logo in October 2019.

Outside of the United States, chef Czn Burak – who has millions of followers on TikTok, YouTube and Instagram – has two trademark applications filed at the Turkish Patent and Trademark Office.

Popular TikTok stars: number of filed or registered trademarks and status of ‘.com’ domain name

Influencer name

TikTok followers

Number of filed or registered trademarks

Status of ‘[name].com’ domain

Loren Gray

39.7 million

0

Active (by third party)

Charli D'Amelio

30.8 million

0

Active (by influencer)

Baby Ariel

30.3 million

0

Active (by influencer)

Riyaz Afreen

29.3 million

0

Parked

Kristen Hancher

23.4 million

0

Not active

Gil Croes

23.4 million

0

Parked

Jacob Sartorius

22.2 million

0

Active (by influencer)

Awez Darbar

22 million

0

Parked

Nisha Guragain

21.6 million

0

Not active

Arishfa Khan

21.5 million

0

Not active

Jiffpom

20.8 million

1

Not active

Spencer X

18.7 million

0

Active (by third party)

Lauren Godwin

18.1 million

0

Parked

Holly H

16.3 million

0

For sale

Annie LeBlanc

15.1 million

1

Active (by influencer)

Czn Burak

14.2 million

2

Active (by influencer)

Addison Rae

14 million

0

Parked

Josh Richards

12.4 million

0

Active (by third party)

Zoe Laverne

12.1 million

0

Parked

Cash and Maverick

11.9 million

2

Active (by influencer)

It is clear, though, that most major TikTok influencers have yet to secure any registered trademark rights for their channel names or other brand assets. For content creators with a large userbase, IP expert Jessica E Cardon, deputy general counsel at Quality King Distributors, strongly suggests considering legal protection for key brand assets. “Any TikTok influencer who has had sustained followers and attracted viral view numbers at least to a few videos should consider the name that they have adopted for their TikTok platform as an asset ripe for protection as a potential multi-category entertainment brand,” she says. “Since TikTok influencers are creators first and foremost, the appropriate types of trademark protection might be similar to an entertainment celebrity – such as a musician or actor – with protection initially sought in entertainment service classes and audio-visual recordings.”

However, Cardon adds: “I think most TikTok creators will delay any individual protection strategies until a point where they have gained a substantial following and have some income potential as an influencer.  Even then, based on what I have observed amongst the influencer population, I suspect most TikTok influencers will not seek protection until they actually have a business opportunity that might exploit their TikTok persona as a trademark, logo or other brand asset.”

Other than the cost aspect, additional reasons for the relative lack of IP protection in the TikTok influencer space, Cardon adds, are awareness, knowledge and a common misconception. “There is often a misapprehension that securing a social media handle on a platform secures or guarantees associated trademark rights to that handle (much like some parties think that securing a domain name is equivalent to securing trademark rights). Until the TikTok creator population gains collective awareness that they need to do more to protect their own brand assets, they likely will feel some comfort in having just secured the account handle name on the platform.”

Nevertheless, there are some proactive measures that TikTok influencers can take that do not require any upfront cost. “I would definitely recommend trying to obtain the same account handle across all social media platforms and any associated domain names that might be available,” Cardon advises. “This at least preserves the persona developed by the TikTok influencers in the digital space with the necessary assets to expand across multiple platforms, further expanding influencer marketing capabilities.”

Of course, IP protection involving TikTok stars also needs to be considered by major brands. With a rise in commercial deals occurring between brands and TikTok influencers (with many sectors, especially in fashion, now choosing TikTok stars over popular Instagram users), IP practitioners should be aware of the difference between working with TikTok users and those on other social networks. “Generally, brands would be prudent to adopt similar approaches they have in place for collaborating with YouTube and Instagram influencers,” says Cardon. “However, adding to that, based on the legal history of TikTok, it would be very important for brands to clarify if there is an age-appropriate audience for any content developed as a marketing asset. TikTok ran afoul of US COPPA standards (allowing under-age users on the platform) and the platform is still heavily used by a minor-age/Gen Z youth audience. For that reason, it will be up to brands to ensure they have content restrictions embedded in their contracts with influencers to add a layer of protection in this regard.”

For now, the trademark community would do well to raise awareness of the importance of brand protection and other issues that TikTok influencers could face as their follower counts and commercial opportunities increase.

Tim Lince

Author | Senior reporter

[email protected]

Tim Lince