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The James Dean Twitter account and trade mark infringement

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29/05/2014

Twitter is awash with parody accounts. In this country a Twitter account purporting to belong to Kevin Pietersen, the England cricketer, allegedly contributed to dressing room disharmony when it transpired that his teammates were following the account and laughing at Pietersen’s alleged tweets. One of Twitter’s most followed accounts is one purporting to be the Tweets of God. Fan accounts also proliferate on Twitter. It is perhaps unsurprising that a parody and/or fan account would end up the subject of litigation, in this case in the United States.

The plaintiff owns the intellectual property rights related to the late actor James Dean. The plaintiff is alleging that Twitter allowed a user to create an account with the name “@JamesDean” during or prior to September 2012 without express or implied permission to do so. The account appears to have been a tribute account and referred to James Dean in the third person. However, it did not state that it was an officially sanctioned account or that it was a fan account.

Twitter has an “impersonation policy” which prohibits users from “portraying another user in a confusing or deceptive manner”. The user is unlikely to have breached this policy, James Dean having died in 1955.

Arguably more relevant to the lawsuit is Twitter’s trade mark policy. This provides that “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”.

The plaintiff maintains that it made numerous requests to Twitter for the removal of the offending account before taking the decision to institute proceedings. Twitter, has now, belatedly perhaps, done so. The lawsuit alleges trade mark infringement, false endorsement and also violations of the right of publicity, unfair competition and unjust enrichment. These concepts are not the same in US law as they are in the UK or EU; for instance, the applicable state law on the right of publicity, relied on by the plaintiff, provides that “a person may not use an aspect of a personality’s right of publicity for a commercial purpose during the personality’s lifetime or for one hundred (100) years after the date of the personality’s death without having obtained previous written consent”. There is no comparable provision in UK or EU law.

Twitter, and other social media, is a potential litigation minefield. From disgruntled employees posting disparaging remarks, to defamatory comments about a brand, to the question of who owns followers (which we considered here) and now trade mark infringement, businesses need to be alive to both the opportunities and the threats presented by social media. In this case, the plaintiff could have avoided the need to bring the lawsuit by registering the @JamesDean account in its own name, as many proprietors of brand names (including celebrities) are now doing. The case also re-opens the issue of the respective liability of the service provider and the content originator.