So you’ve chosen your company name, branding, stationery, and mission statement. Now it’s time to pump up your online presence, right? Yes! That is, if you want people to find out how great your products/services are, or learn more about your mission. Enter stage left the Twitter/Instagram/Facebook account parading around with your name that has a whopping one post, three years ago, and has been gathering cobwebs ever since. So what can you do? There are different sets of guidelines depending on whether or not you have a registered trademark.
You Have A Registered Trademark
If you are in the enviable position of having a registered trademark, most social media platforms provide straightforward and efficient means to report the offending account or username. Trademark violation means that an account is 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.” In the event an account is intentionally using your name/logo, the social media provider will likely, upon your reporting of the violation, delete the account and release the username. However, if it is unintentional (e.g. the account using your company’s name happens to be the account holder’s first name) the social media provider is far less likely to take any action.
Generally, you will need to provide your company name, trademark, trademark registration number, a description of the alleged confusing activity (e.g. “account is using my name for commercial activities”), and the action you want the social media provider to take (i.e. removal of the account and release of the username). Twitter, Facebook, YouTube, Instagram, and Etsy all provide a means to submit this request. However, anecdotal accounts of the process suggest that only Facebook and Etsy are reliably responsive to such requests, and generally get back to you within a few hours and remove the target account within days if warranted. Twitter and Instagram, on the other hand, can take weeks or months to respond to a request, and YouTube is more concerned with copyright violations than with trademark infringement.
You should note, however, that the target account holder generally has the option to submit a “counter-notice” after your removal request has been processed. The outcome of this varies by platform, but generally if you receive a counter-notice you will have an allotted amount of time to tell the platform that you plan to pursue legal action through the courts against the claimed infringer. If you fail to notify the platform that you plan to do so by the due date, the infringing account will be reinstated.
You Don’t Have A Registered Trademark
Unfortunately, social networks are unlikely to help you if you do not own a registered trademark. In fact, Twitter will tell you to choose an alternative username when you seek to take over an inactive account without a registered trademark. Instagram has a similar policy. Obviously, without an officially registered trademark, neither company will provide you much assistance. Without a registered trademark, you are left with only a few options going forward.
Contact The User Directly
Sending a private message to the holder of the seemingly inactive account may be the quickest and easiest way of resolving your problem. Best case scenario? The user will get a regular email alert that they have a message waiting for them on their social media account and will be happy to arrange the transfer of the username.
On the other (more unfortunate) hand, many users holding inactive social media accounts are actually “username squatting” and will want payment in exchange for transferring you the username. The buying and selling of Twitter accounts is explicitly against Twitter’s Terms of Service, and therefore is not an advisable course of action for a business. Not only do you risk being cheated by the username squatter, Twitter may delete your purchased account if they discover that you have paid for it. If you encounter one of these scoundrels, you should report the account to the social media platform for violating their Terms of Service, register your own alternative account, and monitor the reported account for deletion so that you can snatch it up.
Report An Account For Impersonation
Both Instagram and Twitter allow users to report an account for impersonating their business. This is a weaker form of a trademark infringement claim and platforms refuse to give you a timeframe or guarantee they will delete the account. Thus, after your report has been submitted you will just have to continue to actively monitoring the account name to see whether it has been deleted. Alternatively, you could pay for a service such as TweetClaims, which will monitor your desired username and alert you the moment it becomes available.
Create An Alternate Username
Unless you absolutely must have your target username and are willing to invest time and effort in pursuing the above-suggested steps with no guarantee of a successful outcome, you’re better off simply picking an available, alternative username. While this may seem like giving up, ultimately it will save you time and allow you to focus on more important aspects of your new business venture. Additionally, if the username you choose is sufficiently similar to the inactive username it may give you more ammo to have the account removed for impersonation at a later date.
As you can see, a registered trademark owner can more easily snatch a social media account handle that accurately reflects their business. Even though a similarly spelled or underscored handle may do the trick, you’re better equipped to lock in that perfect handle with a registration.
By: Kieran de Terra, Esq. – 7/28/2016
- Trademark 101 – Protect Your Brand
- 3 Steps to Register Your Trademark
- Copyright 101: Know Your Rights
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