I came across an interesting case in the United States on Evan Brown’s Internet Cases blog which he also mentioned in a recent This Week in Law episode. The case is interesting because although the ruling appears to be provisional relief as part of a larger set of proceedings (I am not familiar with the court proceedings in that court), the court appears to have equated Twitter accounts with domain names in the context of trade marks.
Viewing a Twitter account as analogous to a domain name (or close to it) for the purposes of trade mark enforcement makes sense to the extent a domain name has similar significance for a trade mark owner although there are some fundamental differences between a Twitter account and a domain name. For one thing Twitter accounts are made available by a private company which theoretically controls these accounts and makes their use subject to its own terms and conditions. On the other hand domain names are typically available for registration with a number of registrars which essentially facilitate registration of a domain name and don’t get involved with how the domain name is used.
A domain name is a commodity of sorts. Where a person registers a domain name and uses it to infringe another party’s rights, the domain name can be transferred to a stronger rights holder following a dispute resolution process. When it comes to .za domain names, the .za Domain Name Authority has jurisdiction to hear certain disputes and can rule that a domain be transferred to a complainant where a complainant’s rights are infringed by the domain name holder. When we talk about domain name registrations we talk in terms of domain names being owned by registrants but this sort of talk probably won’t be applicable to Twitter accounts.
Twitter’s terms of service contemplate Twitter retaining proprietary rights over its service and this could conflict with this notion of a Twitter user’s account forming part of its/his/her trade mark or being considered a protectable extension of a trade mark:
All right, title, and interest in and to the Services (excluding Content provided by users) are and will remain the exclusive property of Twitter and its licensors. The Services are protected by copyright, trademark, and other laws of both the United States and foreign countries. Nothing in the Terms gives you a right to use the Twitter name or any of the Twitter trademarks, logos, domain names, and other distinctive brand features. Any feedback, comments, or suggestions you may provide regarding Twitter, or the Services is entirely voluntary and we will be free to use such feedback, comments or suggestions as we see fit and without any obligation to you.
While there is little doubt a Twitter account has value for a brand and trade mark holder, it will be interesting to see how a court handles a case in which a trade mark owner seeks some sort of protection for its trade mark via Twitter. The idea isn’t novel, brandsquatting has been an issue for sometime now but when it comes to addressing this type of attack on trade marks, the matter is usually addressed with Twitter itself in terms of its Trademark Policy. This places the dispute squarely in Twitter’s hands and if the complaint has merit in Twitter’s view, it will make an appropriate determination and act accordingly. When it comes to domain names, the bodies handling disputes tend to be established by law or some sort of governmental process and operate on a quasi-judicial basis having regard to applicable law.
Photo credit: Ev and Biz introduce new Twitter design to world’s tech press by Robert Scoble, licensed CC BY 2.0