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
Vendorprisey 
Thomas, Twitter is not the only place this is going on. I recently did a quick review of the Top 100 corporations in Australia and found that across about 65 social media sites most of the names had been taken by cybersquaters! Further on Twitter some were blatantly hijacked with ad’s to email the squatter to “buy” back the name.
This is going to be a major area in the next few years.
Interesting idea, however, I am not sure you would have many companies sign on to use such a system. As the Twitter terms of use say that “We reserve the right to reclaim usernames on behalf of businesses or individuals that hold legal claim or trademark on those usernames.” presumably, a note by a trademark holder that their mark is being used improperly should be enough to resolve the issue.
In the case of legitimate disputes, Twitter could simply suspend all use of the name until such time as the two parties have settled the matter or fought it out in court.
As for copyright, it appears Twitter utilize the DMCA safe harbor.
Add to the list the problem of someone with a ‘valid’ nick such as a hypothetical ‘Joe Nissan’ using the Twitter nick ‘Nissan’. Is poor little Mr Nissan going to loose his Twitter nick because The Nissan Motor Company has more cash than he has in legally fighting for a Twitter nick?
If companies get given the opportunity to fight every nick ‘stolen’ on every socil network they should prepare themselves for backlash. Backlash could be in the form of people or organizations setting up ‘dummy’ social networks using Ning and others then alerting the company that their name is being used in the 100+ new social networks. Imagine the delight the company lawyer firms would take in all this new work.
Ken, what’s stopping someone setting up a shell company/organization in the name of some established twitter nick and then getting Twitter to ‘hijack’ this nick for you?
Great idea- I would add however a $10 REFUNDABLE charge (refunded in case of valid claim). This would reduce claim spam (for want of another description) and provide twitter with a financial case to do this. God knows they need a financial reason to continue, let alone manage this sort of thing.
Tom
Ken,
Resolution in court is expensive, slow and cumbersome. A simple DRP policy would work, and it could be based closely on the UDRP that is used for domain names.
It makes it easier for twitter, as they aren’t playing judge and jury for the situations that Richard mentions.
A note from the trademark holder is merely an accusation of improper use, not proof of it. As with domain names there is quite a lot of grey area.
The less said about DMCA the better. It is a foul and heinous piece of legislation.
Richard,
I think companies will learn quickly to only go after the most obvious and odious trademark violations. The blog and twittersphere do tend to get quite rabid about big IP stamping on the small guy.
It took 5 years for the UDRP to get enacted. We need a UURP sooner than that:
* How To Twittersquat The Top 100 Brands
A call for the creation of the Uniform Username Dispute Resolution Policy.
http://erikjheels.com/?p=1298
Great post! I wonder what economic incentive Twitter has to offer a robust albeit streamlined dispute resolution process. Not being an IP lawyer, I also wonder whether Twitter is exposed to some kind of claim for contributing to TM infringement that might be just that incentive. Dan
helo
What safeguards are in place to stop a big corporation from making false claims of “trademark infringement” and causing untold harm to others? For example Freecycle.org made thousands of claims to Yahoo against groups using the name “freecycle”, any name similar too freecycle or anything resembling the concept of “freecycling”. Yahoo delete the groups (their member lists, all data, information and messages associated with the groups) and they deleted the group’s owner/moderator ID’s and any accounts associated with those ID’s, including paid business accounts, all based on what was later proven in a California court to be false claims of trademark infringement by Freecycle.org. Did Yahoo admit their mistake and return the groups, lost information, members lists or a single ID or group name? Did Yahoo or Freecycle.org apologize or make restitution to the thousands of groups and their owners or to the hundreds of thousands of members of those wrongly deleted groups? Not to my knowledge. I repeatedly requested of Yahoo (before and since the verdict) that they reinstate the groups they deleted, that they release and allow the use of the personal ID’s and the groups names they deleted and even that they refund the money paid for the unrelated business accounts Yahoo was paid to maintain and not one single time did I receive a response from a “real” person at Yahoo, only ridiculous “form” letters that did not apply to the situation, did not address my question or request nor did it address the fact that a California court had ruled against all of freecycle.orgs claims of trademark infringement, making the words freecycle and freecycling part of the public domain.
Again, what safeguards are or can be put into place to stop this sort of abuse for those of us without the resources to take on a court battle with a lying, greedy, corporate pig?
Mark,
It seems to me like you need a lawyer. If the case is as clear cut as you say it is, a simple letter from an attorney may well get this resolved. It is very unlikely you will need a court battle.
Point of order: You need to comma separate your tags when imputting them. They are appearing as one big link where each tag should be clickable.
Cheers,
Nigel
Twitter can give it back to the brand, i’ve heard of a few cases of this happening.