How Should A Startup Protect Its Username On Social Media Sites?

Following an article on what startup should do in order to protect a mobile application idea (see here), it may also be important for startup to register a trademark as a username on social media/networks websites such as Facebook, Twitter, Linkedin, Google+, Instagram, etc. Indeed, we are living in a world where the next Facebook, Google+ is about to come. Ello, for instance, the ad-free social networking service created by Paul Budnitz and Todd Berger in March 2014 could be the next one. If you don’t want a “competitor-user” stealing your username and misusing your brand, you should be the first to secure and reserve it; and read this article!

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Let’s start with a crazy scenario. You just graduated, have a brilliant idea that’s solving an important daily problem, and are one of the best startups ready for the battlefield at the next TechCrunch Disrupt in front of a panel of expert judges, press, and an online audience of millions. Fantastic! What’s next?

 

Assuming your startup is not familiar with social networks, a good strategy to adopt will be to reserve names and marks as usernames on well-known social media sites where you are targeting your customers or willing to get more. In other words, protecting your brand/business from cybersquatting. For example, you might consider creating a Twitter account, such as http://twitter.com/XYZ, a Google+ account (http://plus.google.com/XYZ), a Facebook, Linkedin, Youtube,  etc. Ideally, you should even reserve your username before it is known to the public. Indeed, if an impostor prevents you from using your brand (i.e. reserves a username in bad faith), he can tarnish and dilute the reputation of your mark; for instance, he can try to pass himself off as one of the founders of the startup.

You also can adopt another strategy related to trademark law. You then have two options: either you (the brand owner) decide to register your trademark, or you decide not to register it. Needless to say that if you really believe in your new idea (and I’m sure you do!), you should have done the registration even before you start sharing the concept. For instance, Google registered Google.com as a domain on September 15, 1997 even before they launched the Company, formally incorporated on September 4, 1998.  Without entering into details whether you should do it or not, for instance a registration is required for a brand owner to record rights in the Trademark Clearinghouse, it always depends on the time and money you have. If you want to protect your trademark on a smaller scale, your national IP Office is probably the best and cheapest option. In the U.S., the United States Patent and Trademark Office (USPTO) website will guide you in the application process. There is also a trademark office in China, India, etc. 

 

That’s it! You are ready to enjoy the precious time and efforts you spent on building your startup and registering it online. However, it’s not Disneyland Park out there… You need to be prepare in case a competitor is unfairly using the same or a similar brand name as your startup business. 

What if a third party (a potential competitor for example) is using your brand name in a way which infringes your rights? 

Before any step, you should cautiously assess the alleged infringement (what’s exactly going on here). As a first and obvious first step, in this Internet Century, settling the situation in a “friendly way” by informing the infringer is always encouraged (for instance, you could send to the user a notification with your brand’s rights and simply requesting that the use ceases “Hey dude, could you please stop using my brand”; or something like that). 

If your notification is ignored, the second step is to contact the social media website and persuading it to take down the content. However, you should know that social media sites enjoy certain protections from liability.  

 

In the U.S. under Section 512(c) of the Digital Millennium Copyright Act (DMCA) which creates a “safe harbor” against copyright infringement liability for content posted by website users, and under Section 230 of the  Communications Decency Act (CDA) which immunizes websites from liability resulting from the publication of information provided by others. The European Union also provides significant immunity for internet “intermediaries” under the Electronic Commerce Directive (2001/31/EC), article 12, 13, and 14. Internet intermediaries “are the technological entities that provide the platforms and conduits for digital communications, including internet service providers, web hosting companies, search engines, platforms for UGC (blog hosting sites, video hosting sites, social networking sites, etc.), and a range of other online service providers”.

 

The good news is that most social websites have some policies and procedure (tools) recognizing the potential IP concerns and have the effect of dealing with a dispute with respect to an IPR (trademark infringement in our case). Let’s take a closer look at this step.

 

In this part, the question will be divided in two sub-questions:
 

(1) How are big tech companies seeking to protect their users while sharing their mission

(2) How are big tech companies responding to internal and external customer inquiries regarding legal removals processes? 

 

This procedure, regarded as “voluntary” (i.e. not compelled by law), can be used without going to considerable time and expense associated with traditional means. Besides these advantages, the procedure also address claims to related rights (e.g. breach of privacy, misappropriation of identity) which makes it more attractive too.

 

• Facebook, Inc.

1. Mission

Facebook’s mission is to “give people the power to share and make the world more open and connected. People use Facebook to stay connected with friends and family, to discover what’s going on in the world, and to share and express what matters to them”. Moreover, Facebook “is committed to helping people and organizations protect their intellectual property rights”.

2. The removal process

Facebook has a some guidelines around creating a custom username for a Page or profile. The website explains that you should keep in mind that a username must adhere to the Facebook Statement of Rights and Responsibilities. This agreement, which also included some information on IP, explains among other things how to report a trademark infringement. 

 

If your username is not meeting one or more of Facebook's guidelines for usernames, it will be removed. However, only the trademark owner or their authorized representative may report a suspected infringement. So if someone else is choosing your brand as a username, you should be quite reactive and contact Facebook asap. The damage can occur very fast on the Internet, no time to be passive there.

• Twitter Inc.

1. Mission

To give everyone the power to create and share ideas and information instantly, without barriers. On top of that, Twitter respects the intellectual property rights of others and expects users of the Services to do the same. As mentioned in the Terms of Service, thew will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to us.

2. The removal process

Twitter also has some rules about username and trademark violation. If you are using a company or business name, logo, or other trademark-protected materials in a manner that may mislead or confuse others with regard to its brand or business affiliation it may be considered a trademark policy violation. As explained, a “username should not be the trademarked name of the subject of the news feed, commentary, or fan account”. Username squatting is also prohibited by The Twitter Rules. Finally, “attempts to sell, buy, or solicit other forms of payment in exchange for usernames are also violations and may result in permanent account suspension”.

• Youtube

1. “Mission”

To “provide a forum for people to connect, inform, and inspire others across the globe and acts as a distribution platform for original content creators and advertisers large and small”. Youtube also has a Policy and Safety Hub, namely a central resource for users to learn about YouTube's policies, safety practices, and reporting tools, and some interesting information on the legal removals policies.

2. The removal process

With Youtube, the situation is a bit different. On Youtube, using someone else's trademark in a username, tags, or the title of your video does not necessarily constitute infringement. Moreover, YouTube is not in a position to mediate trademark disputes between users and trademark owners. They encourage trademark owners to resolve their disputes directly with the user who posted the content in question. 

However, there is still some hope for you. Indeed, “if there is content on your profile or video that would confuse viewers into believing that the trademark owner created or sponsors your page or content, then the trademark owner's rights may be infringed. In these cases, [Youtube] may remove the content in question, so it's important to be sensitive to other people's trademark rights when choosing a username or adding metadata to your videos”. Furthermore, if you are unable to reach a resolution with the account holder in question, you can submit a trademark claim through the Youtube Trademark complaint form. Then, YouTube is willing to perform a limited investigation of reasonable complaints and will remove content in cases of clear infringement.

• Other major online platforms

For the other platforms, the EFF wrote a good report last year analysing and examining several company’s published terms of service, copyright and trademark policies, and transparency reports. It’s a great start to see which company has a trademark complaint form, or something equivalent, and how to defend your intellectual property rights.

If your notification is ignored (first step), the social media website is not responding to your request or the complaint is not successful (second step), then the third step is a bit more aggressive and could include sending a cease and desist letter to the account holder, or even filing suit. 

A good example of an unauthorized use in username is TDC International Corp. v. Burnham. In this case, the defendant had been enjoined from using the plaintiff’s mark, EZ MOVING/MOVING AND STORAGE, but nevertheless created a Twitter account under the name “EZMovingStorage”. The Court “characterized the defendant’s use of this Twitter account name as “most troubling,” and ordered the defendant to show cause as to why he should not be held in contempt. On March 3, 2010, the court ordered the defendant to pay the plaintiff a civil penalty of $100 per day until the defendant fully complied with the injunction. When the defendant failed to comply with the injunction and did not attend a Show Cause Hearing, the court issued a warrant for the defendant’s arrest on April 6, 2010”.

 

In conclusion, it is important to prepare and adopt a good strategy to reserve names and marks as usernames on well-known social media sites where you are targeting your customers or willing to get more. Although it seems “natural” to do that in the Internet Century, the monitoring part is perhaps less obvious as are the mechanisms available on social media platforms. Good luck! Comments are welcome.