By R. David Donoghue
More and more frequently, longtime clients call me with desperation and frustration in their voices.
In each case, we have a conversation that goes very much like this:
Client:Dave, I just learned that someone is using my company's identity on Twitter [Twitter squatting]. They have thousands of followers and growing everyday. They have been tweeting for weeks [or even months], and we had no idea until someone told us.
Me: We can take care of this.
Client: But I already tried to contact them and they are anonymous.
Me: They are not as anonymous as you, or they, think they are. I have a plan to resolve this, protect your brand and we can even build your business in the process.
Client: Thank you. [Sigh of relief.]
Unfortunately, instead of my plan, too many lawyers and business owners throw up their hands, unsure how to proceed because Twitter issues have not been around long enough to be fully crystallized by law schools, case law or legal treatises.
And worst of all, many lawyers counsel their clients not to worry about Twitter because it does not matter and no one is paying attention to it.
In fact, Twitter has a massive user base – many estimates suggest 5 to 10 million users and growing quickly. Businesses that ignore Twitter are walking away from one of the most powerful marketing/referral systems in existence.
Here are five steps for protecting your brand on Twitter and stopping Twitter squatters:
1. Claim Your Names
Before you do anything else – in fact, today as soon as you finish reading this article – secure your names, trademarks and brands on Twitter.
Then strongly consider using one or all of the Twitter monikers to find and engage your customers. You can also use those accounts to warn people that a stolen Twitter moniker is not you or your company. This both locks in your Twitter identity and gives a place for your customers to communicate with and about you.
When your customers tweet praise or complaints using your Twitter name they are automatically added to a "Replies" list that you can access through your Twitter account. That allows you to know when anyone mentions you on Twitter, and to respond to them as appropriate.
2. Play Sherlock Holmes
Use the squatting account's description and website links to identify the squatter's address and identity.
If the account does not list a name, use a service like www.whois.com or www.godaddy.com to determine the registered owner of any listed websites. Often, the registrar will provide a real name, address, phone number or email.
If they do not, try using whatever information is provided to track down the individual's other identifying and contact information using any of various internet background checking and identity services, such as www.intelius.com.
If that does not work, review the squatter's tweets to see if they provide identifying information. The squatter will often disclose their geographic location by discussing favorite sports teams, regional news stories or favorite restaurants.
3. Get Your Name Back
If you think the squatting is unintentional, email, call or direct message (via Twitter) the squatter and ask them to drop the name. If they drop it, you can immediately register it as yours. This can be easily accomplished by having the squatter change its Twitter moniker.
Twitter will automatically change the squatter's moniker with all of its followers and on all of the squatter's past tweets. So there is minimal, if any, cost to the squatter and you can claim the name as soon as the squatter drops it.
In addition to changing the name, have the squatter tweet something like the following:
I have changed my name from @TRADEMARK to @squatter to avoid confusion with TRADEMARK.
If the squatting is intentional, asking does not work or if you just do not want to take the time to find out if it will work, send a strongly worded cease and desist letter backed with the threat of legal action.
The power of a stern letter from legal counsel threatening a lawsuit should not be underestimated. Just the letter will often get the Twitter moniker returned to you and the explanatory tweet sent.
Remember that just as you may be uncertain about the value and return on investment of Twitter, the squatter likely has similar questions and is not interested in an expensive legal battle.
4. Take Action
If asking and letters do not work, take action. If the squatter's moniker is a clear and direct infringement of a registered trademark, the action can be as simple as sending firstname.lastname@example.org an email explaining the infringement and asking that the account be suspended.
The only downside is that Twitter suspends infringing monikers rather than transferring them and they only do it for very straightforward infringements, they do not make judgment calls.
If the infringement is direct or if you want the moniker back, file a lawsuit. Depending on your particular circumstances, you can file claims for trademark infringement, passing off or various tortious interferences. This is the most drastic option, but it will show the squatter you are serious, protect your brand and act as a deterrent to future squatters.
5. Use Your New Twitter Identity
This is the step that can generate new business, increased customer satisfaction and even cash flow. Begin following your customers, potential customers, ideal customers and competitors. And run regular searches either on Twitter (where you can save searches to rerun periodically) or at sites such as search.twitter.com for your trademarks, your products, important customers and your competitors.
Use those searches to build followers and to begin engaging your customers, potential customers and even competitors.
Your searches will allow you to identify when a customer praises or complains about your products and services and respond to them. You can explain or resolve complaints or amplify praise be retweeting it in.
These five steps may seem simple in hindsight, but they make up a powerful and important program that is critical for most modern businesses. Too many business people underestimate the power and importance of social media tools like Twitter.
Businesses need to monitor Twitter just like they do other trademark use and media channels. And you must enforce your marks on Twitter just like you do in every other channel of commerce.
R. David Donoghue is a partner in the Intellectual Property Group of Holland & Knight in Chicago, Ill. He may be contacted at (312) 578-6553 or email@example.com.
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