By John L. Krieger
Here’s the scenario: You’re a well-known athlete. You’ve worked hard to make it this far. You wake up one morning, grab your coffee and scan the latest news. You come upon a story about …. you. Apparently, while you were sleeping, you used Twitter to make derogatory jokes about the deaths of former players. But, you don’t have a Twitter account – you don’t even know how to “tweet.” Yet, your name is associated with those damaging comments that have now expanded to the Internet, radio and TV.
When St. Louis Cardinals manager Tony La Russa found himself in a situation like the scenario above, he filed a lawsuit to stop the Twitter imposter. But what can you do if something similar happens to you?
First, A Crash Course in Trademark Rights and Rights of Publicity
Social media disputes often fall under trademark rights and rights of publicity. Trademark law is designed to protect an entity that is the source of a good or service. Famous sports teams and high-profile athletes have been recognized as having, at a minimum, common law trademark rights in their names.
Rights of publicity are rights owned by every person in their own name, image and likeness. Laws protecting rights of publicity ban the commercial exploitation of a person’s name, image and likeness without permission, whether you’re a celebrity or not.
How to Protect Your Brand on the Internet
Facebook, Twitter, YouTube and other platforms provide direct connections that can increase fan loyalty and endorsement deals, while an imposter can cause serious harm. Protecting platforms and intellectual property rights not only safeguards your reputation, but also future earnings. Here are some tips.
Tip #1: Create An “Official” Website
Your “official” website will provide fans, media outlets and the general public with accurate information about yourself and what your brand represents. Choose a domain name that is identical to or closely resembles the team’s or athlete’s name (e.g. www.denverbroncos.com) so that fans can quickly find you.
Tip #2: Create “Official” Pages on Social Media Sites
These should include established and new sites. Link social media sites to your “official” website to guide fans away from imposters. Sports teams should consider linking players’ “official” sites on “official” team sites so people are not confused by the “fakes.”
Tip #3: Put the Kibosh on Social Media Imposters
Facebook and Twitter allow trademark owners to request a particular page be removed and replaced with their “official” page. Twitter also offers a verification process with a blue check next to your name so followers know it’s authentic.
Tip #4: Actively “Police” Your Mark
It’s up to the team, athlete, and/or their publicist(s) to ensure the risks and responsibilities are managed appropriately. You must be vigilant in updating your social media platforms and maintaining regular dialogue with fans. Failure to do so can leave you and your brand vulnerable to attacks.
Tip #5: Root Out Squatters
“Cybersquatters” are people who register domain names with the intent of depriving a trademark owner of the name and/or deceiving the public. Often, cybersquatters hold the domain name ransom until the trademark owner comes calling with money in hand. Tim Tebow, a quarterback for the New York Jets, is currently in a battle with an alleged fan over the domain name “tebowing.com.”
Tebow also encountered a recent situation involving a “typosquatter” on Twitter. After the Denver Broncos announced they were signing Peyton Manning, speculation flew over Tebow’s future. Someone created a Twitter account “@TirnTebow”, replacing the “M” with a lowercase “RN,” and tweeted, “It would be nice to play for a team in FL, preferably the #Jaguars….” It was overzealously re-tweeted by the media, including ESPN, which was later forced to issue an apology.
In these situations, it is best to contact an attorney with experience in Internet trademark disputes to guide you through your options.
Tip #6: Protect Yourself from Cybersquatters
In addition to your “official” domain name, consider registering others that incorporate your trademark and describe your services or location (e.g., www.broncofootball.com; www.boisebroncos.com). You should also consider registering domain names that could be used to tarnish your reputation (e.g. www.ihatethedenverbroncos.com).
Twitter forbids impersonating another with the intent to deceive. However, you must act quickly to bring down an imposter or you may be unable to reverse what’s been done.
Tip #7: Be Able To Laugh at Yourself
There are Twitter accounts created solely to be funny (e.g., @LeBronJamesEgo; @VeryFakeAlDavis). There is little you can do given their protection under the First Amendment–unless they cross the line and become defamatory. If the opportunity presents itself, embrace the parodies — you’ll end up appearing more “human” to your fans.
Tip #8: Think Before You Post
It’s easy to get caught up in the moment. Don’t react too quickly or fail to consider your words before you post to social media sites.
Pittsburgh Steelers running back Rashard Mendenhall learned this lesson the hard way. After the death of Osama bin Laden, Mendenhall posted a series of tweets questioning the public celebration of his death and raised questions about what really happened on 9-11. Public outrage over the tweet was so extreme that Champion sports apparel dropped its endorsement deal with Mendenhall.
Conclusion
Be vigilant. Be proactive. You are responsible for your brand and reputation. If you don’t have the time to “police” the Internet yourself, find a responsible party, such as an attorney, a brand management company, or a service like Reputation.com. Forewarned is forearmed.
John Krieger is a partner with Lewis and Roca’s Intellectual Property and Technology practice group. Mr. Krieger focuses his practice on helping clients strengthen and protect their brand assets in both the real and online worlds, including enforcement of the same by way of various administrative remedies and/or litigation. He can be reached at JKrieger@LRLaw.com.
