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LegalMinuteApr-1

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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.

01 | 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 for reporting 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 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, and Instagram all provide a means for submitting this request. However, anecdotal accounts of the process suggest that only Facebook is reliably responsive to such requests, generally getting back to you within a few hours and removing 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.

02 | YOU DON'T HAVE A REGISTERED TRADEMARK
Unfortunately, social networks are far less likely to help you out if you cannot show that the account you are calling into question is violating your registered trademark. Twitter’s Inactive Account Policy explicitly advises those interested in taking over inactive accounts, but who do not have their name registered as a trademark, to seek an alternative username. Instagram’s inactive account policy is nearly identical to Twitter’s. Obviously, without official registration neither company will provide you much assistance. Thus, if you don’t have a registered trademark to rely on, you are left with only a few options going forward.

03 | 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 ToS, register your own alternative, and monitor the reported account for deletion so that you can snatch it up.

04 | 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 the trademark infringement claim and thus there is no set timeframe or guarantee that the account will be deleted. Thus, after your report has been submitted you will just have to continue 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.

05 | 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 are better off simply picking an alternative available username that suits your needs. While this may seem like giving up, ultimately it will save you time and will allow you to focus on far 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, among the various benefits of obtaining an official Trademark registration with the United States Patent and Trademark Office is that of gaining the use of the social media account handle that accurately reflects your business. While underscored and similarly spelled handles will do the trick, you’re better equipped to lock in that perfect handle with a registration.

Disclaimer: The information in this article is presented for informational purposes only, and should not be taken as legal advice. Before acting on any information presented in this article, you should consult an attorney regarding the facts of your specific situation. We would love to hear from you, so please feel free to contact Wilkinson Mazzeo for a consultation.

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