Today, it is easier than ever to connect with individuals and brands worldwide within seconds. Social media forums, like Twitter, not only make it easy to connect with other users, but they also make it faster and easier to advertise your brand. With 236 million monthly active users in 2015, Twitter, one of the most popular social networks worldwide, gives its users the opportunity to share “tweets” of text-based status updates and messages of up to 140 characters.

With social media platforms, like Twitter, being some of the most popular forms of digital communication, many individuals and brands are concerned with protecting their “marks.” Impersonations and trademark violations are more common in the digital world, particularly for celebrities, like Katy Perry, and popular consumer brands. Celebrity Katy Perry’s name (KATY PERRY) is a registered trademark for multiple goods including apparel since 2013, fragrances since 2011, cosmetic products such as fake eyelashes and nail polish since 2011, and prerecorded CDs featuring music and pre-recorded and downloadable videos featuring musical performances and musical recordings since 2008. See registration numbers 4372735, 4049847, 3682086, and 4505825.

As a result, many people will ask us about the interplay between trademark rights and usernames, or in other words, how to claim your trademark as a username on twitter.

What is a Trademark and Why is Important to Use on Twitter?

As mentioned in Trade Dress Protection, “A trademark is a mechanism for identifying the source of a good or service and a technique for providing marketing advantages for the owner of the trademark.” On Twitter, your username (or “handle”) is the primary way other users find, tag, and identify your account. If someone else is using your registered trademark as a Twitter handle—even without bad intent—consumers may be confused, and your brand’s online presence is diluted.

Twitter’s Username Policy and Trademark Rights

Twitter usernames are issued on a first-come, first-served basis. Twitter does not verify whether a user applying for a username has legal rights to that name, which means a trademark owner may find that their mark has already been registered as a handle by someone else. However, Twitter’s policies do provide a mechanism for trademark holders to reclaim their marks.

Twitter’s Trademark Policy

Twitter’s trademark policy prohibits using another party’s trademark in a way that is likely to cause confusion, mislead, or deceive others about the affiliation of the account holder. Specifically, Twitter may take action against accounts that:

• Use a trademarked name as a username in a way that could confuse consumers about the affiliation or endorsement of the account;
• Use a trademarked logo as the profile picture in a way that could mislead users;
• Impersonate a trademarked brand or person by using their name and imagery to suggest official affiliation.

Critically, the mere use of a trademarked term as a username is not automatically a policy violation. Twitter analyzes context. A fan account, a parody account clearly labeled as such, or an account using a trademarked word in a descriptive way may not violate the policy. But an account using ACME CORP as its handle, posting promotional content, and representing itself as the official ACME Corp account almost certainly does.

How to File a Twitter Trademark Complaint

If another user is using your registered trademark as a Twitter username in a way that violates Twitter’s policy, you can file a trademark report through Twitter’s online complaint form. To support your claim, you will need to provide:

• Your contact information and the organization you represent;
• The trademark registration number and the country of registration;
• The class of goods or services covered by the registration;
• The URL of the offending Twitter account;
• An explanation of how the account’s use is likely to cause consumer confusion.

Twitter will review the complaint and may suspend or reassign the account if it finds a violation. The platform generally does not notify the accused user before taking action, but suspended users may appeal the decision.

What If Your Username Has Already Been Taken?

If the username corresponding to your trademark is already in use, you have several options depending on the nature of the use:

• If the account is inactive: Twitter has a policy on inactive accounts and may release handles that have not been used for an extended period. However, Twitter does not release usernames simply because a trademark holder requests them without evidence of a policy violation.
• If the account is infringing or confusing: File a trademark complaint as described above. Twitter may transfer the handle to the trademark holder in clear cases of infringement or impersonation.
• If the account is a legitimate fan or parody account: Twitter generally protects fan accounts and parody accounts as long as they are clearly labeled. In this situation, the trademark holder’s best strategy may be to establish an official account and distinguish it through verification rather than attempting to eliminate the fan presence.

Federal Trademark Rights and Social Media Enforcement

Platform-level complaints are not the only tool available to trademark holders. Where username squatting or impersonation constitutes trademark infringement under federal law—15 U.S.C. §1114 for registered marks or §1125(a) for unregistered marks—a trademark holder may have a civil cause of action in federal court. The elements of trademark infringement under the Lanham Act require showing: (1) you own a valid, protectable trademark; (2) the defendant used the mark in commerce; and (3) the use is likely to cause consumer confusion.

In the social media context, courts have found that using a registered trademark as a social media handle, combined with commercial activity on the account, can constitute infringement. The likelihood of confusion analysis looks at factors including the similarity of the marks, the similarity of goods or services, the channels of trade, and evidence of actual confusion.

Cybersquatting on Social Media

The Anticybersquatting Consumer Protection Act (ACPA), 15 U.S.C. §1125(d), was enacted to address the bad-faith registration of domain names incorporating trademarks. While the ACPA was drafted with domain names in mind, courts have interpreted its principles broadly, and it has influenced the analysis of social media username disputes. To establish an ACPA claim, a trademark owner must show: (1) it has a distinctive or famous mark; (2) the defendant registered, trafficked in, or used a domain name that is identical or confusingly similar to the mark; and (3) the defendant acted with bad faith intent to profit from the mark.

The bad faith factors under the ACPA include whether the registrant has legitimate intellectual property rights in the mark, whether the name reflects the registrant’s legal name, prior use of the name, the registrant’s intent to divert customers, and whether the registrant offered to sell the name for value. A social media user who registers your trademark as their handle and offers to sell it back to you for a fee is exhibiting the classic ACPA bad faith pattern, and legal action may be warranted.

Best Practices for Protecting Your Trademark on Twitter

• Register your trademark. Federal registration provides the strongest legal basis for platform complaints and litigation. Without a registration, your complaint may be treated as an unregistered mark claim, which requires additional evidence of prior use and acquired distinctiveness.
• Claim your handle early. Register on new social media platforms as soon as they launch, even if you don’t plan to use them immediately. It is far easier to secure your handle before someone else registers it than to reclaim it after the fact.
• Monitor regularly. Set up alerts for your brand name on Twitter and other platforms. Early detection of impersonation or infringing use makes platform complaints and legal action significantly more effective.
• Apply for Twitter verification. A verified account (indicated by a blue checkmark) establishes your account as the official presence of your brand, which reduces the likelihood that consumers will be confused by unofficial accounts.

If you have questions about protecting your trademark on Twitter or any other social media platform, contact Revision Legal’s trademark attorneys at 855-473-8474.