Over the past week, two very important events in one’s online identity took place.
But what if the username you wanted is no longer available? What if your name, your business name or some other element of your identity is gone. This happened to Michael Arrington of TechCrunch and, most likely thousands of others.
If this happened to you, the good news is that you may have rights you can protect, especially if you are facing an obvious namesquatter, but it may be very difficult enforcing those rights on either site due to the nature of the law and the nature of Facebook and Twitter as companies.
Still, it may be worth a shot.
The Basics of the Law
The law has to be applied on a very case-by-case basis in this situation. However, if you use your name as part of your business, especially if it is a name that you created, and someone takes the username with the sole intent of preventing you from having it, you likely have recourse that you can take.
In short, if you use a name, logo or slogan in conjunction with your business, and it is unique to you, you likely enjoy some trademark protection in the name, no need to register. If someone is using your trademark to cause confusion in the marketplace, which is what a namesquatter does, it is likely a form of trademark infringement.
That being said, if someone has legitimate use for a name, they are not squatting on it. For example, on Facebook, I am not “Jonathan Bailey” but instead I am “plagiarismtoday”. The reason being there are many other Jonathan Bailey’s and one of them got the name first. However, Plagiarism Today is the name of my site and my business, giving me much more protection (and much more originality).
To make matters worse when dealing with namesquatting, unlike copyright law, there is no notice-and-takedown system for dealing with trademark infringement. There is a resolution system for dealing with trademark infringing domain names, but it does not apply to either Facebook or Twitter.
Fortunately, both sites do provide systems for filing notices with them and attempting to get the matter resolved. However, there is no guarantee of success.
Facebook provides a non-copyright IP infringement form that one would likely use for this purpose. It requires users to fill out their name and information, a list of the rights they allege were infringed, where the URLs appear and how they are infringing.
In addition to dealing with namesquatters from the recent Facebook land rush, this form also is for dealing with other common trademark issues including “official” fan sites and fake Facebook accounts.
Definitely keep this URL handy if you or your company may be dealing with non-copyright intellectual property issues on Facebook.
As of yet though, I have not heard any reports on how well Facebook responds to and processes these requests and we likely won’t have much of an idea until later this week.
Twitter has had a very long-standing policy for dealing with name squatting, something that does not change with the recent verified accounts
According to Twitter, the easiest way to report a name squatter is by sending a reply to either @spam or @xstalashoe and be sure to include the word “squatter” in your tweet. However, as those who have worked with Twitter know, you’ll likely have better luck following their trademark policy (if applicable) and either filling out their support form or, even better, using the email address they list on the policy.
For reasons unclear to me, several people, including one law firm, have reported better and faster responses by using their email account than via the form.
In the end, if you were a victim during the recent Facebook land rush or didn’t get the Twitter username best for your business and have a legitimate claim to your name, you may still be able to get it.
However, it is important to remember, and worth repeating, that your rights to the name only apply if the other person doesn’t have a legitimate claim. Delta Faucets and Delta Airlines could both use the name “Delta” for Facebook legitimately as could any company with Delta in the name.
Separating the legitimate name claims from the false ones will be a tough job for Facebook and Twitter over the coming months and even years.
As social networking and social news become more and more important parts of business strategies, the issue of naming rights is only going to grow. It seems very likely that this is going to be an area where we see a great increase of litigation in the coming years, and likely a very sticky point for both trademark holders and Web sites that host them for quite some time to come.