Tuesday, June 16, 2009

Brandjacking and FaceSquatting

Interesting times (as ever) in the social networking sites/personal branding crossover world. One of the most interesting papers from Digital Convergence HK was by Lisa P. Ramsey, University of San Diego School of Law on "brandjacking", on social networks - the increasing practice of grabbing famous personal or corporate names on social networks, even if they're not you (or not exclusively you).

Twitter has had quite a history of this, as the current locus of choice for celebrity blogging - but it is also, less obviously, becoming of enormous commercial significance - just a few days ago Dell proudly announced it had sold c $3m worth of computers through its Twitter shop (though as one commenter wisely says, are these new sales or just diverted from other salespoints??)

To respond to this, Twitter has just announced a verified account process - at first rolled out only for personal, not commercial, usernames and aimed at famous names (eg the likes of Neil Gaiman and Stephen Fry, who have been plagued by imitators/admirers). The new service at the moment merely invites those afflicted to submit their details but not does not give any details of what evidence will be used to ascertain who is who , nor how to distinguish between two worthy competitors for the same name - eg my brother is called Jonathan Edwards and is a consultant IT and office automation lawyer, but there is also Jonathan Edwards the former medal winning triple jumper! Who should get the Twitter space? Neither is exactly Janet Jackson... and arguably though the sport one may be more famous, my brother can make better commercial use of this particular space?? Interestingly anyone can apply to be verified - so Pangloss has, sub nom Lilian Edwards! Let's see if they reply :-)

And even practically as Lisa was speaking, the social network "domainspace" expanded enormously with Facebook's sudden overnight launch of personal usernames. The resulting land grab and predictable accompanying furore of lost and fraudulent claims has been rather wonderfully, named Facesquatting and all kinds of virtual dust is still settling. The Grauniad say "Facebook says 500,000 users grabbed their usernames within 15 minutes of the system going live, with no reports of major squabbles so far."

Lisa suggested that as with domain names, the law of trade marks should be relevant to protect brands, and needs re examining to see if it could meet this kind of challenge. She then canvassed the kinds of problems that may result, familiar to those who've followed the ICANN wars. What about businesses whose name is a generic, like Apple Computers ? Should they get preferential treatment on Twitter or FB when they wouldn't in TM law?

Pangloss checked and on FB, Apple-we-know-and-love has Apple Store and Apple Ipod, but the page "Apple" has actually been registered by, er, a lover of apples. Yes, the green vitamin-loaded things! PG is quietly pleased at this triumph of nature over commerce :)

So should the Cox- lover be deposed by FB, or if they don't play ball, even sued under TM law, or fined under the US Anti CyberSquatting law, or local equivalents? If so, why? And what about Fiona Apple the singer, who sells most her records over the Internet these days, and also has an FB "be a fan" page??

Social networks were originally set up to allow people to be, well, social, not to sell things - and to be fans of things like pop groups, books, movies, comics and er fruit : all extensions of their personality. Yet as the Grauniad wisely suggest, it is likely the SNSs will bend over backwards to make provision to allow remedies against "facesquatting" etc because the businesses and the celebrities are the place where they will, if ever, find a revenue stream more reliable than mere ads. As the Grauniad adds : "

"In truth, though, I think the odd timing shows us something else: that the real target of Facebook usernames aren't users at all, but the companies, brands and high-profile celebrities who can be convinced to pay for services somewhere down the line.

And they've already had their usernames granted to them, regardless of the timing of the launch. Anyone else is just going along for the ride."

Multiple registrations on multiple networks (FaceBook, Twitter, Bebo, whatever) will also be a problem. The brand-owners are already aghast at the prospect of the extension of the URL domain name space to cover internationalised domain names (Kanji, Korean alphabet, etc) because they see this not as an opportunity to brand more effectively to their customer bases , but as creating hundreds of new domain names they'll have to buy up and police to avoid cybersquatting. What should be a blessing has become a curse. Interestingly, PG has been directed to a lovely tool to check whether your name is available on multiple SNSs - reportedly it has been much used in the Facebook username goldrush!!

Pangloss is deeply unsure if some new version of TMs and domain name law should be adapted or invented for the social namespace. For one, there is simply not, or at least not always, the same problem as there is with domain names used as URLs: that there can be only one. There is already more than one Lilian Edwards on Facebook (and I am lucky to have an unusual first name) but there can only be one lilian.facebook.com (and it is not me) or even liianedwards.co.uk.

Is it really helping any to give me yet more opportunities to fight it out with the other Liians ) at least one of whom has her own business, selling elephant drawings!!) ? Isn't the real solution here better granular search facilities on FB and other sites, not giving out and policing unique vanity URLs? There is already substantial evidence the public now overwhelmingly finds sites via Google not via typing in random URLs anyway.

But - as Lisa pointed out - is the issue not actually more of public confusion, than of brand maintenance? If I find a site called Dell on Twitter, will I assume it is the real Dell selling me reputable computers, not some rip-off merchant? Perhaps, but here as noted Twitter is already bringing in its own solutions (and asking businesses to pay for a verified site at some future point doesn't seem too wrong to me either, if it leads to $3m extra sales.).

In the Twitter celebrityspace there is also a rather cute emergent norm, that when a name has been snaffled, the celebrity renames as " -himself" - so eg Neil Gaiman is @neilhimself.

As well as these "norm" solutions, if the problem is public confusion, can't that be better met by enforcing existing public laws on false advertising, fraudulent commercial practices, etc, than by inviting vast swathes of private trade mark litigation, which might in turn need the reinvention of the ICANN UDRP procedure, international treaty negotiation, etc etc, all over again? This seems to me like a place where we should not in knee jerk fashion turn to an IP solution. We don't need more property for companies to fight over here, and given the costs of policing the brand, they possibly don't want it either; all we need are workable solutions for consumers.

Lisa pointed out correctly that most false advertising rules only apply to commercial actors - but this doesn't have to be so. In fact in the UK, it is an offense in advertising law to deceptively hold yourself out as a private person when you are in fact a business ( for more on this and the problem of the emergent hybrid consumer or "prosumer" see Christine Riefa's chapter on e-contracts in the upcoming - guess what - 3rd edn of Edwards and Waelde eds Law and the Internet.)

Let's stop and think a bit before we jump again to create yet more new IP rights, ok?

Pangloss is now at a hotel with a pool and a beach :-)) so she's going to try to take a break from all this intellectual fever!! Bye for now :)

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