The Trade Marks You’re Missing: Social Media Assets Worth Protecting

Social media platforms operate within what many academics describe as an “attention economy”, where users are presented with a constant stream of content competing for limited cognitive resources. Research has suggested that heavy exposure to rapid, fragmented content may be associated with reduced sustained attention, fragmented memory recall, increased cognitive overload and greater reliance on mental shortcuts when processing information.[1]

As consumer attention becomes increasingly fragmented, the way consumers identify and distinguish brands is also changing. On social media, brand recognition often occurs in a matter of seconds. Consumers scrolling through an endless feed rarely pause to conduct a careful analysis of a brand name or registered logo. Instead, they frequently rely on a combination of visual, auditory and contextual cues to recognise and distinguish brands.

Colours, typography, imagery, packaging, design styles, music, sounds and recurring content formats can all shape a consumer’s perception before they consciously register a business name.[2] In many instances, consumers may recognise the source of content almost immediately, even where a business’s registered trade marks are not prominently displayed. This recognition is often driven by repeated exposure to a consistent combination of visual, auditory and stylistic cues that consumers have come to associate with a particular brand. Such behaviour aligns with the psychological concept of the “mere exposure effect”, which suggests that repeated exposure to a stimulus increases familiarity and, in turn, recognition and positive perception.[3] In a social media context, consumers may therefore identify a brand through familiar digital assets, such as a hashtag, colour palette, content style, audio cue or account handle, because those elements have become embedded in memory through repeated interactions with the brand.

This shift has important implications for trade mark law. Trade mark protection has never been confined to traditional word marks and logos. Depending on the jurisdiction, protection may extend to colours, shapes, sounds, slogans and other non-traditional signs where they function as indicators of commercial origin. The challenge for modern businesses is determining when elements of their social media presence have moved beyond mere marketing devices and have become indicators that consumers rely upon to identify source.

Increasingly, consumers are not engaging with brands through traditional purchasing environments, but are encountering them through short-form videos, stories, livestreams, influencer collaborations and curated content feeds.  In this digital environment, recognition may occur through a combination of digital cues rather than a single word mark or logo.

A valuable trade mark asset today may not be limited to a registered brand name. It might also include a widely recognised hashtag, a distinctive account handle, a consistently used sound mark, or another element of a brand’s digital identity that consumers have learned to associate exclusively with that business.

In an increasingly crowded online marketplace, protecting these assets can be just as important as protecting the traditional trade marks that appear on products and packaging.

A Trade Mark Audit for the Digital Age

Businesses operating social media platforms should consider whether consumers associate any of the following with their brand:

• social media handles and usernames;
• recurring hashtags;
• slogans and taglines;
• audio branding and signature sounds;
• colour combinations and visual themes;
• content formats and recurring creative elements;
• profile imagery and avatars; and
• distinctive aspects of their overall social media presentation.

The key question is not whether these elements were originally created or intended to function as trade marks, rather, whether consumers now perceive them as identifiers of commercial origin. If an element has acquired this source-identifying function, it may form part of the business’s broader digital identity and could warrant consideration for trade mark protection alongside more traditional brand assets.

Conclusion

The modern consumer is navigating an environment defined by speed, distraction and information overload. In that environment, trade mark recognition increasingly occurs in seconds, and often through a combination of visual, auditory and experiential cues rather than a single brand name.

As businesses invest more heavily in creating distinctive digital identities, they should be mindful that many engagement-focused assets may also be functioning as trade marks. In a world where consumers make purchasing decisions after a five-second scroll, the most important source identifier may not be the single word or logo mark. As part of a broader digital identity that consumers immediately recognise, robust protection of all associated elements is critical to safeguarding the brand against misuse and maintaining its distinctiveness in the market.

If you are an Australian brand owner and need assistance with protecting your IP-related assets, please reach out to our trade marks team for advice.

[1] Alina Poles, “Impact of Social Media Usage on Attention Spans”, Psychology, 2025, 16, 760-772; Giraldo-Luque S, Aldana Afanador PN, Fernández-Rovira C. “The Struggle for Human Attention: Between the Abuse of Social Media and Digital Wellbeing”, Healthcare (Basel),  2020 Nov 19;8(4):497.

[2] Muhammed Tufekyapan (2025), https://ecommercepsychology.com/leveraging-the-mere-exposure-effect-for-brand-recognition [Accessed 19 September 2026].

[3] Janine Ungvarsky (2020), https://www.ebsco.com/research-starters/psychology/mere-exposure-effect#full-article [Accessed 19 September 2026].