Social networking can be fun, and even lucrative, but it creates ever evolving sources of disputes for intellectual property owners.
Recently, St. Louis Cardinals manager, Tony La Russa, brought suit against the social networking site Twitter.com, along with as yet unidentified defendants. La Russa’s complaint, filed in the Superior Court of California, threw the proverbial book at Twitter, alleging trademark infringement, false designation of origin, trademark dilution, cybersquatting, misappropriation of name, misappropriation of likeness, invasion of privacy, and intentional misrepresentation.
The claims apparently arise from the appearance of a supposed Tony LaRussa page on the Twitter site, which the complaint states “contained an unauthorized photograph” of La Russa, “written statements impliedly written by [La Russa] himself when they were not,” and “unauthorized uses” of La Russa’s trademark and name.
The statements, which were posted on what apparently was billed as a “parody” page by a Twitter user, are alleged to have caused La Russa emotional distress. The statement “Lost 2 out of 3, but we made it out of Chicago without one drunk driving incident or dead pitcher,” is generally understood to refer to a March 2007 DUI guilty charge against La Russa, as well as two Cardinals pitchers who died in recent seasons.
The parties dispute how quickly Twitter responded upon being notified of the offending page. At the time of this writing, the page at www.twitter.com/TonyLaRussa reveals the Twitter trademark and states emphatically, almost cheerfully, “That page doesn’t exist!”
On another page on the site, Twitter reports “Impersonation violates Twitter’s Terms of Service and we take the issue seriously. We suspend, delete, or transfer control of accounts known to be impersonation. When alerted, we took action in this regard on behalf of St. Louis Cardinals manager Tony La Russa.”
Twitter quickly struck back, asking that LaRussa’s case be removed from state court to the federal district court for the Northern District of California, a venue where internet operators facing claims for the conduct of their users have received favorable rulings in the past. Twitter’s request for removal is still pending, and Twitter’s answer to the complaint is not yet due.
If the case does not settle in the interim, Twitter may very well seek to defend itself by asserting that the page in question was created by one of its users without its knowledge and/or that it is not responsible for the conduct of users violating its Terms of Service. La Russa in turn may pursue a claim based on an allegation that Twitter should have better policed the activities of its users.
News reports that the lawsuit has been settled on terms that required Twitter to pay La Russa’s legal fees and/or make a donation to a charitable site supported by La Russa have been contradicted by Twitter. Twitter reports on its site that “Twitter has not settled, nor do we plan to settle or pay. With due respect to the man and his notable work, Mr. La Russa’s lawsuit was an unnecessary waste of judicial resources bordering on frivolous.” Twitter also took the “opportunity” to announce plans to launch what it is referring to as “Verified Accounts” this summer.
The exposure of social networking sites for the activities of users is ripe for litigation, given the many legal disputes over the liability of website operators for “user generated content” on their sites. Google and YouTube, for example, face numerous suits arising from the activities of their users.
Although the United States Supreme Court provided important guidance on the subject of “secondary liability” for activities by third parties in the “Grokster case,” its decision left many open questions, as described in an earlier article by this author published by The Bureau of National Affairs.
Indeed, readers of the IP Update will remember our recent Special Update about Facebook’s surprise notice to trademark owners regarding its new profile pages. We notified readers that Facebook would allow its users to create personalized URLs that would redirect to their Facebook pages. Facebook also announced that it was allowing trademark holders to “pre-block” their trademarks from being registered as usernames by Facebook users, through submission of a simple online form.
Facebook later notified parties who submitted such pre-blocking requests that, unless they set up Facebook profiles using the marks themselves, it “may be possible for another entity to request that username in the future if they also claim rights.” Thus, how disputes between trademark owners and parties using trademarks for profile names on Facebook will play out remains to be seen.
Twitter, Facebook, and others are all the rage, but technological changes in the way people communicate create challenges, pushing the law to adapt, and requiring intellectual property owners to be on the alert.