Cool Influencers vs Cruel Infringers: Do KOLs have IP Rights?

By Kaarthic Balakrishnan

I still remember the day I told my mom that my friends and I were going to shoot a short film and upload it on YouTube. It roughly sounded like “Ma, I am going to be a YouTube actor”, which got me a nice walloping. You might think this happened a few years back, but no, it was nine years ago.

Vlogs, music videos, cooking/recipe tutorials, workout videos, product reviews and testimonials, to name a few, were just starting to draw attention back then. We were less likely to rely on YouTube or websites for information compared to televisions, newspapers and other traditional forms of media.

Today, being a YouTuber, content creator, Key Opinion Leader (KOL), influencer and/or brand ambassador is a profession. Some have left their nine-to-five jobs to upload videos of their own creation as a full-time job. The best part is those who “make it” earn a profitable income and have a lifestyle worthy of envy.

How can one have the confidence to take their profession as a YouTuber, KOL or influencer seriously? It is the support that they obtain from their subscribers, and viewers; people like you and I who watch their videos or content religiously.

Eventually, viewers come to rely on them on specific subject matters. KOLs who share their views, opinions, or criticisms on a certain subject matter become more popular and influential for specific audiences. In addition, with the use of digital marketing, especially on social media platforms such as TikTok, Twitter, Facebook and Instagram, they have been able to broaden their opportunity to create a personal brand as a business.

In Malaysia, the talk of the town right now is Khairul Amin Kamarulzaman (@khairulaming), a celebrity chef on Instagram who has shared numerous cooking videos and gained followers with his signature  “30 hari 30 resipi” cooking show series throughout the fasting period of Ramadhan. To date, he has over three million Instagram followers and has expanded his personal brand by having his own YouTube channel where he also shares simple cooking methods and recipes with his followers.

Recently, he released his own product – bottled sambal named “Sambal Nyet Berapi”. Thousands of bottles were purchased within minutes by his followers. As a result, there were people who tried to replicate and fraudulently act as resellers without his authorization, thus infringing his trademark and compromising any licensing agreements he may have entered into.

To put it simply, if anybody comes up with a brand or trademark in the course of business then it is crucial that they embark on the journey to secure their trademark rights apart from registering their business existence with the Companies Commission of Malaysia (Suruhanjaya Syarikat  Malaysia).

Why are Trademarks Important?

Protection. It is as simple as that. It is mainly to protect your brand or business from any potential infringer who wants to copy your trademark on identical or similar goods/services. In Malaysian IP Law, you still have rights for an unregistered trademark in the event of an infringement against your brand. However, without a registered trademark, trademark ownership would take a great deal of effort to prove, and you will have to go through a lengthy court process.

To avoid the hassle, you have to be mindful to secure your trademark rights and take the necessary early preventive steps. It is also crucial to renew your trademark every 10 years in order to prevent the removal of your trademark by the Trademark Office as an abandoned trademark.

Moreover, trademark registration also gives you extra income by way of franchising and/or licensing and earning royalty fees. Once your business achieves success, you can always consider franchising and/or licensing your trademark to a third party to gain more reach, recognition and income. This is a similar business strategy to famous brands such as McDonald’s, Tealive, Secret Recipe and so on.

Let’s Not Forget about Copyright 

Influencers are content creators and naturally own the copyright to their content (assuming they are not taking content from other creators and thus infringing their copyright). When they create their own content, they have rights to the literary and artistic work as well. These rights can be monetised further – for example, their blogs or videos can be translated into different languages, their articles can be pieced together to make a book, their photographs can be sold as postcards and so on. Copyright automatically exists when the work is created. However, taking the added step to obtain voluntary notification (VN) from the IP Office is advisable as that VN serves as evidence of ownership in Court when there is a copycat in the market that the YouTuber, KOL or influencer wishes to sue.

To wrap things up, trademark registration and copyright notification must be kept as top priority in the course of your business. Apart from protecting your brand/business and maintaining market share, this will help the YouTubers, KOLs or influencers monetize their assets, and grow their business.

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