Article Reprint With our compliments Protecting Your Rights in 140 Characters or Less: Trademark Protection on Twitter By Jennifer Archie, Jennifer Barry and Christopher Olson Social networking sites like Twitter Users register with a unique username have become the latest channel for and post 140-character updates at businesses to announce sales, release their leisure. Other users then decide product information, respond directly to follow Twitter accounts and receive to consumer questions and feedback, their updates. Based on the variety of or post clever quips aimed at attracting applications offered by Twitter, users new business. Widespread commercial can receive these updates, referred to use or misuse of this new 140-character as “tweets” by the Twitter community, communication channel presents new directly on the Twitter.com Web site, on challenges for those charged with another integrated Web site, on their monitoring and protecting intellectual computer desktops, or on their cell 2 Reprinted from property rights. Corporate brands from phones, Blackberrys, or iPhones. every industry seem to have found As of now, Twitter is free, as it does their way to Twitter, raising interesting Intellectual not charge users a fee either to register questions about the legal implications Property & or follow. Interestingly enough, the of the latest social networking hot spot company also has yet to divulge its Technology Law on the Internet. Companies must be revenue-generating plan. As a recent vigilant to protect their intellectual Journal BusinessWeek article explains: property rights by registering their To date, Twitter’s plans remain obscured November 2009 brands on Twitter. behind a sort of Silicon Valley Mona What Is Twitter? Lisa smile. The company is playing well with others while divulging next to Twitter’s popularity lies in its simplicity. nothing about its intentions. It’s allowing Think of it as text messaging to the outside parties to create Web sites that masses or micro-blogging. According manipulate and repackage its streams of to the Twitter homepage, “Twitter asks tweets … These things, and others, are one question, ‘What are you doing?’ happening with Twitter’s consent and Answers must be under 140 characters without it demanding a dime.3 in length and can be sent via mobile Twitter recently secured a third round 1 texting, instant message, or the Web.” of financing of $100 million and was Latham & Watkins operates as a limited liability partnership worldwide with affiliated limited liability partnerships conducting the practice in the United Kingdom, France and Italy and affiliated partnerships conducting the practice in Hong Kong and Japan. Under New York’s Code of Professional Responsibility, portions of this communication contain attorney advertising. Prior results do not guarantee a similar outcome. Results depend upon a variety of factors unique to each representation. Please direct all inquiries regarding our conduct under New York’s Disciplinary Rules to Latham & Watkins LLP, 885 Third Avenue, New York, NY 10022-4834, Phone: +1.212.906.1200. © Copyright 2009 Latham & Watkins. All Rights Reserved. If you wish to update your contact details or customize the information you receive from Latham & Watkins, please visit www.lw.com/LathamMail.aspx to subscribe to our global client mailings program. This article is reprinted with permission from the November 2009 issue of Intellectual Property & Technology Law Journal. Copyright © 2009 Latham & Watkins | Article Reprint estimated to be worth $1 billion.4 When 6. Twitter (@twitter, 2.433 million asked about its plans, Twitter founder followers); Biz Stone remarked that “finding a 7. Ryan Seacrest (@RyanSeacrest, model that scales with our growth 2.390 million followers); and adds relevance and value to users 8. John Mayer (@johncmayer, 2.354 is much more interesting to us than million followers); traditional online advertising.”5 Recent 9. O’Neal (@THE_REAL_SHAQ, 2.329 reports indicate that Twitter might begin million followers); and charging for commercial uses of the site, 10. Barack Obama (@BarackObama, as Stone said, “We are noticing more 2.264 million followers).9 companies using Twitter and individuals following them. We can identify ways Twitter and the Business to make this experience even more valuable and charge for commercial Community 6 accounts.” As of the publishing of While Twitter has certainly caught on this article, however, Twitter remains with the celebrity-following crowd, completely free for companies or businesses have not yet fully embraced individual users to set up accounts. the social networking site as a useful Twitter’s meteoric climb up the social marketing tool. A recent study estimates networking hierarchy stemmed largely that only 2 percent of all companies from celebrity participation, as users actually use Twitter for business.10 signed on in droves to receive direct Looking at the top 100 Twitter accounts, tweets from stars like Ashton Kutcher, Whole Foods Market (@WholeFoods) is Britney Spears, and Shaquille O’Neal. the biggest brand using Twitter, ranking Kutcher, tweeting under the Twitter #43 with approximately 1.4 million moniker @aplusk, holds the most followers.11 followed Twitter account, with over According to an online tracking 7 3.7 million followers. Kutcher posts database, the Top 10 Twitter brands are: frequently on Twitter, responding directly to fans’ and followers’ posts, 1. Whole Foods Market (@WholeFoods, linking to amusing Web sites, and 1.438 million followers); most famously posting a scantily clad 2. NBA (@NBA, 1.437 million “twitpic” of his wife, Demi Moore. followers); 3. Zappos (@zappos, 1.378 million The second-most popular Twitter followers); account currently belongs to Ellen 4. JetBlue Airlines (@JetBlue, 1.297 Degeneres, who recently edged out million followers); Britney Spears for the number two spot. 5. Southwest Airlines (@SouthwestAir, CNN’s @cnnbrk account, which posts 721,443 followers); breaking news updates throughout the 6. MTV (@MTV, 374,360 followers); day, recently slipped from the number 7. Starbucks (@Starbucks, 301,463 8 two spot to number 4. The top 10 followers); Twitter accounts: 8. TV Guide (@TVGuide, 187,711 1. Ashton Kutcher (@aplusk, 3.727 followers); million followers); 9. Urban Outfitters (@UrbanOutfitters, 2. Ellen Degeneres (@TheEllenShow, 45,433 followers); and 3.432 million followers); 10. American Apparel (@ 3. Britney Spears (@britneyspears, americanapparel, 44,660 followers).12 3.403 million followers); The numbers demonstrate that online 4. CNN (@cnnbrk, 2.76 million followers, at this point, do not flock to followers); the commercial tweets with the same 5. Kim Kardashian (@KimKardashian, fervor that they follow celebrity Twitter 2.473 million followers); accounts. Some companies, however, have seen the value in establishing 2 Latham & Watkins | Article Reprint and regularly using Twitter accounts. Twitter and Trademark Morgan Johnston, manager of corporate Protection communications with JetBlue, states, “[O]ur role on Twitter is driven by the As Twitter becomes increasingly popular requests of our followers. Twitter is a and more companies begin to establish great way to talk to many, but even Twitter accounts, the need to protect better for listening . Our goal would recognized trademarks becomes more be to make ourselves available, help apparent. As was the case when the whenever possible, and to show that domain name wars raged in the mid- our brand is built by real people who 1990s, Twitter “username squatters” care about our customers.”13 A sample have emerged, registering popular JetBlue tweet is: trademarks and company names in the hopes of parlaying the goodwill of the Heads up for the bay to basin mark into a future payday. travelers: we’ve got daily flights from SFO, OAK, and SJC to LGB Top global brands have been slow to for as low as $39 each way: jetblue. register on Twitter. A recent article com.14 estimates that of the top 100 global brands, only seven have their main Whether JetBlue’s customer-friendly brand registered as a Twitter ID.19 tweets equate to increased sales and Most of the others have been taken by revenues is unclear, but the airline’s squatters. Twitter following has jumped from 10,000 in January 2009 to more than Twitter’s official policies offer some 500,000 by May 2009.15 modicum of protection to trademark holders, as its terms and conditions Companies use Twitter not only to specify: “We reserve the right to reclaim post information about sales and new usernames on behalf of businesses or products but also to communicate individuals that hold legal claim or directly with consumers. For example, trademark on those usernames.”20 a recent post from Sarah Molinari (@TheHomeDepot), Home Depot’s Twitter also specifically prohibits corporate communications manager, name squatting or “user name for sale responded directly to a customer’s accounts.” According to Twitter: question online, commenting: Name squatting and ‘user name for @jcarole Jennifer—saw your tweet. sale’ accounts will be permanently I’d love to hear your feedback— suspended. Attempts to sell or extort send an email to me: information@ other forms of payment in exchange homedepot.com so we can follow for user names will result in account up.16 suspension. Accounts that are inactive for more than six months Molinari explains that from Home may be removed without further Depot’s perspective, having a Twitter notice.21 account is about “sharing relevant info and being available when customers Twitter relies on its own discretion in need us.”17 Like Home Depot and determining whether name squatting JetBlue, most of the companies on has occurred. It will take the following Twitter use internal employees to factors into account: manage their Twitter accounts. For 1. The number of accounts created; example, Alicia Jones, who works in 2. Creating accounts for the purpose of Corporate Affairs and Communications preventing others from using those for Honda, is responsible for updating account names; Honda’s Twitter account from @Alicia_ 3. Creating accounts for the purpose of 18 at_Honda.