LEGAL BLOG

Generic Terms and the Public Domain: Why Some Federal Trademark Registrations Must Be Cancelled

Sliding in the DMs has reached a whole new meaning in the influencer world. A simple direct message from a company can mean an offer of hundreds to thousands of dollars for a single endorsement post! Who wouldn’t be eager to jump on that deal? After all, brand endorsements are one of the main ways influencers make money.

But what happens if after you post, you don’t hear back from the company for payment? What happens if you did not post exactly what they had in mind? If you have not signed a contract or negotiated a written agreement, the brand deal may not end up being as beneficial as it sounded. Transactions for endorsements have traditionally been very professional, diligent negotiations that involve outlining clear expectations from both sides of a deal. Yet with the growth of social media giants like Instagram and TikTok, it has become easier for companies to directly reach out to influencers without a middleman present, consequently eliminating the formalities seen in business deals and negotiations, employment contracts, and independent contractor agreements and marking a clear and concerning industry trend. Specifically, the result has been informal agreements reached without the advice or counsel of attorneys, wherein the terms of the agreement are often vague, ambiguous, and found in a hodgepodge of DMs. The safety, security, and reliability of a well-negotiated written contract signed by legally represented parties has been shirked for the convenience of social media.

Oftentimes, a brand will reach out to a creator asking to partner up. The cheery comments and enthusiastic DMs make it difficult to distrust them, leading many users to eagerly agree to the offers by simply sending a quick “yes” via direct message. Influencers, particularly those who are well-established or have a large following, constantly receive Instagram DMs asking for assistance with promotions, offering free products, and extending brand ambassador, influencer, or other employment opportunities, but they are often not specific as to their expectations or methods of payment unless a contract is created. This is not an uncommon occurrence when collaborating through DMs, and although convenient, without an attorney present to negotiate the specifics and expectations from both parties, the likelihood of a party being dissatisfied with the products or services rendered significantly increases.

A formal and executed written agreement provides for clear directives and mutual expectations, reliability on certain beneficial contractual clauses, and security in the event one party breaches the agreement and legal action must be taken. For example, an influencer or independent contractor agreement may outline the design, format, timing, and content of social media posts the influencer is expected to publish. This type of clarity and reliability works to the benefit of both parties, i.e., both the influencer and the company.