Social work: how can brands get the most out of Twitter?

Setting up an account on popular social media site Twitter is easy. It requires an email address, a handle (the name that will appear first on your account) and not much else. There is no identity verification and, initially at least, no restriction as to what you call yourself (unless someone else already uses the name you’d like). There’s nothing to stop anyone calling themselves whatever they wish, and that includes trademarked names.

Like any good online citizen, Twitter has a trademark policy (though no one from the company was available to discuss it with WIPR). Its guidelines state: “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 may be considered a trademark policy violation.” When notified of potential trademark violation, Twitter will take down the offending account, or engage with its holder to clear up any ambiguity.

But Twitter is clear that its users can reference trademarks in their tweets: “Using another’s trademark in a way that has nothing to do with the product or service for which the trademark was granted is not a violation of Twitter’s trademark policy.”

Who’s on Twitter?

A look at the top 10 companies of the Fortune 500 shows that all bar one (Berkshire Hathaway) have substantial, clearly recognisable presences on the site. That said, in almost every case, there are other users whose Twitter handles include the trademarks (e.g. @wakeup_walmart and @ exxonmobiltweet).

Most of the time, this is unlikely to be a problem—if an account clearly states that it is unaffiliated with the relevant brand and is not used for commercial purposes, then there should be no major cause for confusion. Brands may not like it, but they are unlikely to be able to do much about it, and there may even be some value to them in having their name promoted across the Internet. Even so, most brands will want to monitor the tweets of such users.

Squatters’ rights

While Twitter takes a strong public line against those ‘squatting’ on Twitter accounts for trademarked terms, companies looking to take action against them may want to think very carefully before doing so. Twitter users tend to stick together when one of their number feels threatened, and there is a direct correlation between a company’s enforcement activity on the site and the amount of press a problematic account gets.

"IF AN ACCOUNT CLEARLY STATES THAT IT IS UNAFFILIATED WITH THE REVELANT BRAND AND IS NOT USED FOR COMMERCIAL PURPOSES, THEN THERE SHOULD BE NO MAJOR CAUSE FOR CONFUSION."

A case in point: life insurance company Coventry First filed suit in June against the anonymous owner of the Twitter account @ CoventryFirst. This account (which has now been changed to @coventryfirstin and contains a ‘parody’ disclaimer) features tweets encouraging and acclaiming early deaths, such as: “horrible weekend...no plane crashes (they make a lot of money), no earthquakes.

Even now, the account has just 19 followers, but global press coverage ensured the lawsuit was widely publicised. When Coventry First eventually dropped the case (aft er being criticised for procedural errors), it was unclear what exactly the company had gained by filing it, though the company said it had established that the owner of the account was not a competitor.

@coventryfirstin continues to tweet, while a quick search of Twitter reveals that there are now 12 accounts in the form @coventryfirst+number, none of which appear to be active. Coventry First would not confirm whether it owns these accounts, but if so, it would appear to be a sensible way of protecting against the situation repeating itself.

Unfortunately for big businesses, not all confusing accounts have as few as 19 followers. At the time of writing, @BPGlobalPR has 166,735, accompanied by a black and white reproduction of BP’s logo, and a description claiming that it exists to “get BP’s message and mission statement out into the twitterverse!” Of course, @BPGlobalPR is not an official BP account—quite the opposite.

Since the 2010 oil spill off the Louisiana coast, it has been spoofing the company with tweets such as: “We have begun the process of collecting our crude oil in biodegradable spill-proof containers: pelicans.#bpcares.”

There are a few important differences between this parody and the Coventry First one, quite apart from the number of followers. For one, there seems to be a clear commercial element to the account: it links to an online shop selling spoof BP and anti-brand T-shirts (albeit with the proceeds apparently going to a Gulf of Louisiana clean-up charity).

But the biggest difference is that, to date, BP seems not to have taken action against it. Why might that be? Well, perhaps it is wary of ‘The Streisand Effect’, whereby complaining about something online ensures that it becomes more popular and more damaging than ever. Perhaps it has realised that whatever it does, and however genuine its grievance, any action on BP’s part would make it look like the bad guy, throwing its weight around.

Or perhaps, more surprisingly, BP has simply calculated that the account may not be doing it any real damage. Indeed, it could be argued that BP’s tolerance of it actually puts the company in a good light, while it should be obvious enough that the account is a parody to avoid any but the briefest of confusion among consumers.

Lisa Ramsey, professor of law at the University of San Diego School of Law, says companies should think very carefully before deciding what action to take against those they suspect of infringing their trademarks on Twitter. “You have to ask yourself, is this really a problem?” she says. “If people don’t think this is your account, then probably don’t do anything...the aim is to prevent consumer confusion.”

Of course, there are situations in which companies would be wise to take action against Twitter account owners. If there is a suspicion that a problematic account posting is defamatory, especially if it may originate with a competitor or ex-employee, it may well be sensible for companies to take action against them.

Accounts that are used to impersonate a business, especially if they are not obvious parody accounts, could result in genuine confusion. For companies keen to control their marketing message, that can become hugely problematic, not to mention the added risk with ex-employees of trade secrets being disseminated.

But it’s not always easy to identify the person behind an account. Tony Prenol, partner at Blake Cassels & Graydon LLP in Canada, explains: “So much of what goes on is done anonymously. You’d have to take some steps to force Twitter to disclose information, and you might need to target the ISP.”

Additionally, there is the problem of how to demonstrate infringement, let alone financial damage. Ramsey says: “In many countries, there’s likely to be a requirement that someone used the mark for goods and services.”

The bright side

Despite the potential pitfalls of Twitter for companies looking to promote themselves effectively, it can provide a useful opportunity for engaging with consumers and exploiting trademark assets. As Prenol says: “What brands want to do is get out ahead of everyone else in delivering their message. You want to be proactive.”

Some of the most successful businesses on Twitter (if success is measured by ‘followers’, and not including media or social networks) include Whole Foods Market (2,004,790), Starbucks (1,623,940) and Jet Blue Airways (1,643,883). The most obvious thing these companies have in common, in terms of their activity on Twitter, is consistent and regular engagement with their customers.

"THE LARGER A COMPANY'S PRESENCE ON THE NETWORK, THE LESS LIKELY IT IS THAT CUSTOMERS WILL BE CONFUSED ABOUT THE ORIGIN OF AN ACCOUNT."

If someone directs a tweet at one of the companies, whether negative or positive, the response tends to be swift, addressing the problem where necessary and thanking/praising the consumer if appropriate, sometimes even in languages other than English. Additionally, all these companies aim to direct followers to other content that may be of interest, whether recipes, promotions or, sometimes, something unrelated to the company that nonetheless fits in with its overall values and image.

From a trademark perspective, this looks like a very sensible approach to Twitter. Firstly, the larger a company’s presence on the network, the less likely it is that customers will be confused about the origin of an account. No one could easily mistake an account that looked like it might be from Starbucks, but only had 30 followers, for the real thing.

Secondly, a responsive and interactive Twitter account allows a company to put out potential fires before they start—by dealing with grievances and keeping an eye on references to the company across the network, small problems can be stopped developing into larger ones. All this seems obvious, but the history of Twitter is littered with companies that have, for example, tried to argue with customers on the site, or failed to engage with problems effectively and quickly enough.

In one famous case, a company employee tweeted derogatory and offensive comments from the company account. Though the tweet was later taken down, the damage was done. Bad etiquette travels quickly, it seems.

Does it matter?

For some companies, Twitter may never become an important platform for developing, promoting, or protecting their business. But for others, especially those that engage with the public on a regular basis, it offers an unprecedented opportunity to communicate with customers and promote a brand.

The site generates 1 billion tweets per week and is adding users at the rate of hundreds of thousands per day. That’s a lot of scope for misuse of trademarks, but it could also provide companies with the means to exert real control over how their customers interact with those trademarks. The rules of engagement might not be the same as in traditional media, but the law is. Those companies that prosper look likely to be those that engage early and effectively.