I’m not a lawyer. This is just my musing, not any sort of formal legal advice.
I was reviewing answers to my Software and Law survey last night when I saw a tweet where someone was wondering how to claim the company name back from a Twitter user. The user doesn’t work for the company and was apparently bad mouthing the company. This got me thinking about trademark dispute management in Twitter. or more correctly the lack thereof.
Several years ago I wrote an LLM paper on domain names. It was all about the dispute resolution issues to solve trademark disputes. I remember reading some excellent stuff from legal academics like Froomkin, Edwards, Mueller, and Geist. It was a hot issue at the time, and trademark and domain names are far more complex than first meets the eye. Lots of messy freedom of speech and constitutionality issues. Fun if you like that sort of thing (sadly, I do).
Well, what about cybersquatting in Twitter? Trademark law applies in Twitterland, the same as it does everywhere else.
Take this case:
1. A person registers the name of a company as a Twitter handle.
2. A reasonable person reading the tweets would then likely assume those tweets came from the company.
3. Those tweets are damaging to the company in that they are misleading, or hostile to the company.
4. Company wants the handle back
5. What happens next?
With domain names, there is a procedure. It has its flaws, but there is a procedure.
ICANN has a dispute resolution policy (UDRP), and there is also specific anti-cybersquatting legislation (ACPA) in the US, and there is case law and specific statute in other countries about domain name disputes. I won’t go into details on the UDRP or the Anti-cybersquatting legislation here, but there is lots of good information on this issue. see Wikipedia for a start.
Is a Twitter handle a domain name? If so then the UDRP and the ACPA would conceivably apply, but as Twitter actually own the 2nd level domain name, the Twitter bit in www.twitter.com/name , this could get very messy indeed.
Twitter has responsibilities to trademark holders. It has responsibilities to its users and it has responsibilities for privacy and security too. Cool technology is not above the law. This isn’t the first time that Twitter has had IP challenges.
The lawyers are stirring. As one recently stated.
Twitter has become a cesspool of trademark infringement and copyright infringement claims. Essentially, people set up twitter accounts and add feeds from popular websites and blogs. They brand the twitter account using the trademark protected logo of a third party and then see how much traffic they can drive. If you or your company is experiencing brand-jacking on Twitter, contact one of our internet attorneys for more information about your rights and successful approaches to having the infringing content removed. If you do not protect your trademark registrations and copyrights, who will?
This tone from the lawyer above is not particularly helpful, but the lawyers have a point. IP infringement does take place in Twitter. Trademark owners are required to defend their marks, otherwise they risk loosing them.
At the same time Twitter needs to be transparent, even-handed and fair in how it assesses violations. Trademarks often conflict, and simply kowtowing to a trademark holder’s demands without proper due course isn’t fair to Twitter users either.
According to this post from Steve Poland they still have a lot to learn. Steve had several Twitter names removed from his possession by Twitter. He wasn’t happy about it. Based on the facts in the post I think Twitter were probably right to do so, but the process was far from ideal.
So Twitter, I suggest you create a clear and simple dispute resolution policy for trademark issues, and make it part of your T&Cs. Here is my two cents’ worth.
1. Outline the procedure to challenge a twitter domain registration. Trademark holder to fill in a request form, outlining the grounds for the challenge.
2. Notify the domain name holder that their registration has been challenged, and on what grounds (bad faith, financial gain…)
3. Allow them 2 weeks or so to respond.
4. If the domain name holder wants to contest the challenge, then offer a simple mediation service, at a fixed and relatively small fee, paid for by the challenger.
5. Evidence from both sides to be presented in writing, via an online template, to the mediator.
6. Mediator replies in writing via email within 10 days or so.
7. Judgement of the mediator is binding on the parties.
8. The fee goes to pay for the mediators, as per the ICANN model.
9. Mediators are required to have a good background in trademark law. Perhaps this sort of service could be run by law schools with a Information Technology focus?
Sort this out please Twitter.
Interior of Kopi, punk squat and music venue; Kopenicker Strasse, Berlin Photo from the cc Flickr Paul Graham Raven. Thankyou
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