You’ve selected the perfect brand. Trademark counsel has cleared it. You even have the domain. Everything’s coming along, but then you get the bad news: someone else owns the corresponding Twitter username.
It happens. In September 2011, Netflix was roundly mocked for failing to secure the Twitter handle for its much-ballyhooed QWIKSTER DVD-to-mail service – a problem that was solved only when Netflix abandoned its plans for the DVD-only option.
In a perfect world, companies would ensure that a new brand is available on key social media sites before launch. Otherwise, at least as far as Twitter is concerned, you might be out of luck. If the owner of the Twitter account acquired the username before you established rights in the trademark, typically there’s no infringement claim to be made. You also can’t simply offer to buy the username from the owner – Twitter explicitly prohibits selling or buying usernames.
You might, however, be able to take advantage of some workarounds. For example, if the Twitter account-holder begins using the account to impersonate you in a non-parody manner (once your use of the brand begins), he or she might be violating Twitter’s Impersonation Policy. Unfortunately, there is no guarantee that Twitter will transfer the account to you. Twitter might instead suspend the account, or it might even allow the owner to keep using it as long as the owner makes changes to clarify that it is not affiliated with you.
CNN applied a different and creative solution to Twitter’s ban on buying usernames. When it learned that a third party owned the @CNNBrk account, the news company hired the account-holder as a consultant to train CNN staffers on how to use Twitter in return for control of the username. Though CNN’s actions stemmed from a desire to treat a valued fan kindly, rather than to circumvent the Twitter ban, it nevertheless created another option for a brand owner between a rock and a hard place.
Twitter also occasionally deletes usernames that have been inactive for some unspecified period of time longer than six months, though Twitter has no firm policy about such deletions. You might be able to pick up a username of interest at this time. We have had success with nudging Twitter into turning over an inactive account by filing a trademark or namesquatting complaint. Yet, Twitter may be less receptive to such a complaint if the user logs in regularly, even if the user has not posted content in some time.
Written by David Bell and Leanne Stendell.
Leanne Stendell is an associate in the Dallas, TX office of the law firm of Haynes and Boone, LLP. Her practice focuses on trademark law and social media. She may be reached at firstname.lastname@example.org or 214.651.5110.