If they make a movie out of this lawsuit, they could call it The Social Network, Part Deux. Less than a year after the Oscar-winning film about the struggle for control of Facebook hit the screens, a high schooler living a few hours' drive from the social media giant's headquarters filed this lawsuit against a college-aged entrepreneur for allegedly squeezing him out of his own Twitter account.
The Twitter account at issue is @OMGFacts. It posts a steady stream of random trivia, from celebrity gossip to random world records to "weird news"-style oddities. High schooler Adorian Deck created it one day in September 2009, reportedly when he was home sick from school. The site took off, attracting over 300,000 followers in less than a year.
It also attracted 24-year-old entrepreneur Emerson Spartz, who by then had already created multiple successful websites. In February 2010, the Indiana-based Spartz signed a contract with Deck to take OMGFacts to the next level. He created a website, a YouTube channel, and merchandising, all branded with the OMGFacts brand. The site's readership skyrocketed to 1.9 million followers, making it at one point the 126th most popular out of more than 200 million Twitter accounts. But Deck soon felt disenfranchised from his own creation and underpaid from its revenues.
On April 26, 2011, Deck filed a federal lawsuit against Spartz, seeking rescission of the parties' contract and alleging a variety of claims under the federal Lanham Act. That is the statute that protects against infringement of trademarks (whether registered or unregistered), false advertising, false endorsement, unfair competition, and the like. Deck alleged that "OMG Facts" is a common law trademark protectable under the Lanham Act, that Deck owns it, and that Spartz had recently and wrongfully asserted ownership of the mark. Spartz has posted a lengthy blog entry in his own defense, and it's far too early to guess which of the youthful litigants will prevail.
There are several interesting legal issues at work in this dispute, but I want to focus on the notion of a Twitter account as a federally protected trademark. Many observers seem amazed that this prospect. They shouldn't be.
Trademarks are the commercial identifiers that signify a business's goodwill. They are the symbol and shorthand for everything the public associates with the brand. As such, it is critically important for businesses to protect the integrity of their marks. As a company prospers, its trademarks can become incredibly valuable properties. According to a recent survey, Apple recently surpassed Google as the world's most valuable brand. That little silver fruit with one leaf and a bite missing is worth more than $153 billion.
As money flows into social media, therefore, the urge to stake out and protect brand identities there will follow. And the money is flowing, as LinkedIn's recent initial public offering of stock and $8.7 billion valuation demonstrated.
Plenty of Twitter users before Deck and Spartz have used the platform to launch commercially successful brands. Justin Halpern began tweeting under the name "Sh*t My Dad Says" to chronicle his father's off-color and hilarious bon mots. After attracting over 700,000 followers, Halpern landed both a book deal and a CBS sitcom of the same name. (He now has over 2.3 million followers.) Celebrity tweeters reportedly net over $10,000 per tweet to endorse a product. Even existing brands can use Twitter to broaden and deepen their appeal. Dell, for instance, has made more than $2 million in sales through its @DellOutlet Twitter account.
Not all Twitter account names will automatically become protectable trademarks. There are several reasons that protection may not be available in any given case. For example, many (perhaps most) accounts are used purely for personal, non-commercial purposes. Trademark law, on the other hand, is concerned with uses "in commerce." Even if an account name is used commercially, it may be too generic or descriptive to serve as a distinctive signifier of source. As a general rule, the mere title of a work is not, in and of itself, a trademark.
If a business uses its Twitter account name as a commercial identifier and the public begins to associate the business's goodwill with that handle, however, the account name can conceivably gain protection under the trademark and unfair competition laws, just like any other identifier could. It has become common to see website URLs branded as trademarks; Twitter account names serve an analogous purpose. As mentioned above, although federal trademark registration is a useful precaution, it is not a prerequisite to protection under the Lanham Act. Instead, what usually matters most is whether the "mark" has secondary meaning (i.e., goodwill) in the public eye, whether the mark has been consistently used in commerce, who used it first, and where.
The brevity of Twitter account names are no barrier to trademark protection. All but one of the marks on the above-cited study's Top Ten list consists of either a single word or a simple logo. That, too, is unsurprising; the easier a mark is to remember and recognize, the more likely it will be to stick in the minds of consumers.
Not long ago, I wrote about the Maremont v. Susan Fredman Design Group case, in which an employee sued her employer for posting on her Twitter and Facebook accounts. As I explained, the "mark" at issue in that case was Maremont's personal likeness and identity, which raises questions not only of a Lanham Act "false endorsement" claim but also the right of publicity--the state-law right to control the commercial exploitation of your own likeness. The OMGFacts dispute is another variation on these themes. The fact is that trademark infringement, stolen-identity, and similar cases are commonplace in other industries, and will become so on social media as businesses increase their activities in that realm.
What is not common elsewhere, though, is the youth of these particular litigants. Deck is still only 17, so he had to get his mom to sign his contract and file his lawsuit for him. Because social media accounts are so often opened under personal names, moreover, right of publicity issues are more likely to crop up than they would be in traditional media outlets. The democratization of publishing that social media has ushered in will make the resulting litigation that much more complex. Online businesses would do well to think of themselves as businesses from the beginning, and to govern themselves accordingly.
