An increasing number of companies are trying to establish a presence on the popular information network Twitter, only to find that “Twitter squatters” have beaten them to the punch. Fortunately, companies can take steps that may help them reclaim their brand. In some cases, a Twitter squatter’s use of a company’s trademark may constitute trademark infringement, and the company can assert claims under the Lanham Act and demand that the squatter release the username for the company’s use. Alternatively, in cases where a Twitter squatter is in violation of Twitter’s Trademark Policy, companies may be able to use Twitter internal policies to force the Twitter squatter of their mark.
Claim your Name
With more than 100 million active users sending 250 million tweets per day, an increasing number of businesses are using Twitter to share information and build relationships with consumers of their brands. If they have not already, it makes good business sense for companies to act fast to establish a presence on Twitter by securing their trademarks as Twitter usernames.
Reclaim Your Name
If a company is unfortunate enough to find that another Twitter user has already registered one or more of the company’s trademark as a Twitter username, there may be ways for the company to reclaim its brands based on trademark rights.
Although courts have not ruled on this specific issue, trademark owners should be able to assert claims under the Lanham Act for trademark infringement, although this may depend on how the squatter uses the Company’s Twitter username and account. Establishing trademark infringement under the Lanham Act requires proof that (i) a defendant has used the plaintiff’s mark in interstate commerce (ii) in connection with the sale or advertising of goods or services, (iii) resulting in a likelihood of confusion as to the origin of the defendant’s goods or services. Under this test, a Twitter squatter who registers a company’s trademark as its username, and uses the account to send tweets advertising goods or services competitive to those of the company is almost certainly violating the Lanham Act as well as a myriad of other state law trademark and unfair competition statutes.
In some cases another user may have innocently claimed the company’s trademark as his or her username. This will be especially common if the company’s trademark is also a frequently used word or name. In such a case, if the Twitter user is not using its account in a confusing or misleading manner, asserting claims under trademark or unfair competition law will be tenuous at best. Nonetheless, a company may still have success in simply sending the squatter a Twitter direct message, asserting their trademark rights in the username and requesting that the squatter change his or her username, so that the username is released for the company’s use. It may be helpful to point out to the “squatter” that his or her followers and past tweets will automatically be transferred to his or her new username, so there is little cost or inconvenience to the innocent squatter that would form an obstacle to cooperation.While a company might believe that it can pay off a Twitter squatter to facilitate obtaining a desired username, be warned. Twitter policy specifically forbids paying for usernames in such circumstances.What exactly Twitter would do if it discovered that payments had been exchanged, however, is unclear.
If it is more likely that the squatting is intentional or a potential violation of the Lanham Act, companies may wish to send a stronger cease and desist letter to the squatter, demanding the release of its trademark as a username. This letter may have to be sent through a Twitter direct message – it may be difficult to find the squatter’s identity if his or her profile does not reveal identifying information. However, an examination of the squatter’s past tweets may reveal some clues to his or her identity.
Ask Twitter for Help
If the squatter refuses to cooperate, companies may be able to turn to Twitter for help. Specifically, Twitter maintains a Trademark Policy that provides that users cannot use a company name or trademark in a manner that may mislead or confuse others with regard to its brand or business affiliation.
Companies can report a violation by submitting the username of the report account, as well as the company’s name, Twitter account, website, and trademark (including registration number and jurisdiction). The report should also include a description of the confusion and the action the company is requesting, such as removal of the violating account or transfer of the trademarked username to the company’s existing account. Reports can be submitted online through Twitter’s support forms.
Twitter relies on its own discretion when receiving reports and may take one of two approaches when dealing with the potential violations.When Twitter finds “a clear intent to mislead others” through the unauthorized use of a trademark, it will suspend the account and notify the account holder. Alternatively, if Twitter determines that an account appears to be confusing users, but “is not purposefully passing itself off as the trademarked good or service,” it will give the account holder an opportunity to clear up any potential confusion. Twitter may also release the username for the trademark holder’s active use.
Trademark owners may be able to help persuade Twitter to suspend the account if they can show evidence of actual confusion, such as the fact that other Twitter users have actually been confused and erroneously followed the Twitter squatter. Additionally, if the Twitter squatter’s account is inactive (i.e., no tweets for six months), Twitter may be more inclined to remove it. However, the Trademark Policy does state that “[u]sing another’s trademark in a way that has nothing to do with the product or service for which the trademark was granted is not a violation of
Twitter’s trademark policy.” Thus, there is a chance that Twitter will not find the squatting a violation and will do nothing, especially in the case of a commonly used word or name. Twitter’s Trademark Policy specifically allows only holders of registered trademarks to report possible trademark policy violations to Twitter’s Policy Team. However, nothing in the policy suggests that only owners of registered marks can take advantage of the policy. If a Twitter squatter takes an unregistered mark, the owner should still file a report of brand or entity impersonation, but should include with that report some persuasive evidence showing the brand owner’s rights to the mark.
Although it is not yet clear how courts will rule on issues related to Twitter squatting, there are steps that trademark owners can take that fall short of filing a lawsuit. Of course, the best strategy for companies is to register their trademarks right away to establish a presence for their brands on Twitter.