Should We Trademark Social Media Handles?
Major corporations frequently experience the effects of identity theft that run rampant on the internet. There have been multiple cases and publications about cybersquatting with actual domain names, however, should federal trademarking be extended to social media handles as well?
Attribution
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Is it time to expand federal trademark protection to corporations and growing brands on social media sites? According to an article from Michigan State University states that "it is time for legal recognition..." of social media Cybersquatting, “Username Squatting” to be acknowledged. This new form of Cybersquatting has arisen in recent years, with the influx of social media and its marketing capabilities significantly affecting our growing economy.
Similar to domain names, social media handles allow individual users to create a link to their profile, permitting users or viewers to shop within that social media handle. Usernames also enable these entities to to spread their brand and likeness on social media apps to increase customer traffic for those products. These factors alone seem as if cybersquatting exclusion should be extended to the social media handles on Instagram, Facebook, or other platforms as they serve the same purpose of promoting specific content or items to potential customers.
The influx of social media influencers, who utilize their name or their most profitable username on one platform, experience a multitude of impersonations on other social media accounts across others. Additionally, there may be attempts to obtain money through deception and extortion from fans who assume that the parody account is the artist or influencer, thus allowing the impersonator to profit from the content creator. This fraud embodies the reason trademarking became important: to ensure product quality and ensure its source is identifiable. Are these individuals who build their business online or famous brands not entitled to the same protection even though social media handles and website domains are very similar?
Trademarks are relevant to the name or symbol of a particular brand, allowing the customer to ensure the actual product of the brand or service given to the consumer. During the expansion, many internet sleuths saw an opportunity to profit off unsuspecting users by registering a domain similar to well-known brands and companies. As a result, causing confusion among consumers and users to profit off of the confusion; prime examples are Yahoo, X-box, Tom Cruise, Nicole Kidman, and Walmart. In several of these instances' users were directed to a confusing similar website name supposedly associated with the entity with a reputable trademark or likeness– allowing the domain user to profit off of the traffic they were receiving; thus manipulating users to trust a site and potentially partake in fraudulent transactions. Now, with the ability to profit from internet traffic, it is important to regulate potentially fraudulent activity.
The advent of social media as a platform to conduct business is growing substantially, as the majority of shoppers start their search on social media platforms in recent times. Protecting business brands began in the 1940s with the Lanham Act, which "protects the owner of a federally registered mark against the use of similar marks if such is likely to result in consumer confusion or if the dilution of a famous mark is likely to occur." These additional layers of protection for brands to protect their online presence were acknowledged by the Anti-cybersquatting Consumer Protection Act of 1999 (ACPA). The 15 United States Code § 1125(d) amendment allowed brands a cause of action for those with federally protected trademarks recourse for bad faith individuals to were seeking to profit off confusing consumers. Considering the amendment to the ACPA it appears as if legislators acknowledged that there are instances and opportunities for bad-faith characters to abuse brand names, we should consider the possibility and implication of explicitly amending for social media as well.
Trademarks ensure that either the word or symbol is used to distinguish goods or services in the marketplace. Consumers associate the mark with a particular source, it establishes "goodwill" and the understanding that it is the official manufactured product. Cybersquatting is "when a person other than the owner of a well-known trademark registers that trademark as an internet domain name and then attempts to profit from it by … using the domain name to divert business from the trademark owner to the owner of the domain name. Elements required to find an individual liable for Cybersquatting are that the "Plaintiffs [have] ownership of a distinctive or famous mark entitled to protection; defendant's domain name is identical or confusingly similar to plaintiff's trademark; and defendant registered domain name with bad faith intent to profit from it." Under the Cyberpiracy Prevention section: “(d)(1)(A) A person shall be liable in a civil action by the owner of a mark, including a personal name which is protected as a mark under this section, if, without regard to the goods or services of the parties, that person— (i) has a bad faith intent to profit from that mark, including a personal name which is protected as a mark under this section; and… (I) in the case of a mark that is distinctive at the time of registration of the domain name, is identical or confusingly similar to that mark; (II) in the case of a famous mark that is famous at the time of registration of the domain name, is identical or confusingly similar to or dilutive of that mark…"
Under these current legislative laws and regulations, it is only natural that trademark expands to usernames on social media. Is the next step to protect brand users on social media? Usernames allow individuals and corporations to utilize their brand, likeness, and trademark on social media apps to increase customer traffic with their products. These factors seem as if cybersquatting regulation should be extended to the social media handles as they serve the same purpose of promoting specific content or items to potential customers, as they would on website domains. The impact of Cybersquatting on trademark names is persistent, especially during humanity's most technologically advanced time. With such fast-paced development within technology, it constantly alters and impacts the intellectual property rights of another individual or entity. In the current era of social media, it is well-known that many brands and identities revolve around using a face and/or name, their intellectual property and brand Goodwill should be recognized across all platforms and have protection.
The lack of regulation for social media usernames poses a significant threat to brands and individuals who use them as a signal of reputability. Whose brand or trademark symbols will ignite the fire under the legislative branch to pass a law against "Username Squatting". How much damage must be done before brand owners receive adequate protection in their technologically advancing world? How far should that arm extend before it becomes unethical, burdensome, and an impediment to First Amendment Rights – the freedom of expression? Or has this issue already been adequately addressed?