We've talked a little about litigation around domain names of famous people. But what about accounts on social media platforms?
Tony LaRusa, manager for the St. Louis Cardinals, is suing Twitter at the Superior Court of the State of California for a now inactive account that bore his name and likeness in LaRusa v. Twitter, Inc.
Although close scrutiny of the account does indicate it was not really LaRusa's (citing parody), they did make off-the-cuff remarks like,
Lost 2 out of 3, but we made it out of Chicago without one drunk driving incident or dead pitcher.
LaRusa had apparently contacted Twitter repeatedly to get the account deleted, with little success.
The complaint mentions LaRusa's notoreity and his established web presence in their claim for trademark infringement,
6. …He maintains the domain names tonylarussa.com, tonylarussa.org, and tonyJarussa.net. Each domain directs you to the website for ARF (www.arf.net).
ARF is LaRusa's Animal Rescue Foundation, which helps save stray cats and dogs.
The action is not made out against the user of the account, but Twitter itself,
8. Defendant's use of Plaintiffs mark both in the Site's domain name and on the Site itself is misleading and likely to confuse users by leading them to believe that this Site is endorsed and authored by Plaintiff LA RUSSA. The Site states in large lettering, "Tony laRussa is using Twitter", and encourages users to "Join today to start receiving Tony LaRussa's updates." It also contains a picture of Plaintiff with his name printed next to it. Beneath the picture, the Site contains written entries that are impliedly written by Plaintiff himself, when in fact they are not. The entries are derogatory and demeaning and are damaging to Plaintiffs trademark rights.
Should social media sites be held directly liable for celebrity accounts created by users? Is it even possible to monitor all accounts created for this purpose? This situation appears to be distinct from previous claims against bulletin boards, ISPs and blog hosts that contain defamatory information or trademark infringement.
But the complaint also makes out a case for cybersquatting under the Anticybersquatting Consumer Protection Act (15 U.S.C.A. 1125(d)),
19. Defendant's actions as stated herein, including its registration and use of the domain name twitter.com/TonyLaRussa in an intentional attempt to divert the public away from Plaintiffs authorized websites to Defendant's website, constitute a bad faith intent to profit from and injure Plaintiff's mark, is intended to increase traffic to Defendant's site, or were done wilh knowledge that injury to Plaintiffs mark was substantially certain to occur.
Factors reviewed in Greenpoint Financial Corp. v. S & H Greenpoints.com when applying this statute include,
- a) strength of mark;
- b) degree of similarity between the marks;
- c) the proximity of the products;
- d) the likelihood that the senior user of mark will bridge the gap;
- e) evidence of actual confusion;
- f) the junior user's bad faith in adopting the mark;
- g) the quality of the junior user's product; and
- h) the sophistication of the relevant consumer group.
Twitter is relatively search optimized, and will show up higher in Google rankings. But their success in this respect are hardly a deliberate and bad faith attempt to divert traffic from other legitimate sites.
And a social media host can't be held responsible in this context for a celebrity's own inability to create a strong web presence and own their name in web searches, especially when such domain addresses are automated when the user creates the account.
This claim is perhaps more properly made against the user of Twitter that registered it in LaRusa's name, with Twitter perhaps added as a co-defendant for not reviewing the account or responding to inquiries.
Perhaps the flaws in this claim are best illustrated by the cause of action for intentional misrepresentation,
37. Defendant on its website from and after April 19, 2009, and continuing until the present, has published the false and fraudulent representation that "Tony LaRussa is using Twitter."
38. The representing contained on Defendant's website is made to all members of the public over the internet.
39. The foregoing representation is false and fraudulent in that Plaintiff does
not have a webpage on Twitter, nor does Plaintiff use Twitter.
Don't take it too personally Tony.
"Omar Ha-Redeye is using Twitter" too, and so is everyone else on the site.
