YourName(R) – Trademark Protection is Coming to Social Networks

Oh, baby, baby, it's a wild, unregulated world. Facebook and LinkedIn, among other online social networks, are vast private communities that have thrived without oversight from any policy-making body. And new social networks are proliferating like bed bugs in a cheap hotel. As a result, trademark protection on social networks is becoming a serious concern for corporations.

Your personal and corporate reputation and popularity on these networks pivot on an identity known as your username. The role of usernames as brand identifiers is following a similar pattern as domain names but without any of the protections that trademarks owners enjoy.

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Guest author Tom Barrett is founder and president of EnCirca, Inc, a domain name registrar formed in 2001. EnCirca is also the company behind TM.Biz, which helps protect trademarks on social networks. Barrett lives outside of Boston, Massachusetts and is a member of more social networks than he can keep track of.

Social networks are at a crossroads in terms of balancing the free spirit of their community and embracing the rights of brand owners. The relationship can either be adversarial or cooperative. Everyone wins if it is cooperative. Besides, for a new type of social network, trademark protection is going to happen anyway.

The Internet Corporation of Name and Numbers (ICANN) is the non-profit governance body for the Internet. While its mission is the stability and security of the Internet, it is also focused on introducing competition and increasing domain name choices for consumers across the world. This fall, it will publish the Applicant Guide Book for parties wishing to launch their own top-level domain (TLD) to compete with .com. This guide has been several years in the making and encompasses many of the best practices learned from the first 15 years of the World Wide Web, including trademark protection.

Even before its publication, over a hundred proposed groups have announced their plans to apply for their own TLD. This includes communities oriented around cities, countries, ethnic groups and special interest groups based on sports, games and entertainment. Microsoft, Nokia and IBM are all rumored to be exploring the idea of their own TLD. In reality, most of these new TLDs will resemble what we think of as a social network with communities of members with shared interests.

Since a community username will essentially be the same as a domain name, these social network TLDs will be applying ICANN's trademark protection policies to usernames. The result will be predictability for the end-user and predictability for trademark owners. And the policies represent good business practices for these social networks too.

These policies include:

1. A trademark dispute policy for ownership of domain names: A trademark dispute policy helps the Social Network TLD stay out of any legal disputes that occur between the network member and the trademark owner. It minimizes legal costs for Social Network TLDs, just as it has for existing domain registry operators.
2. A sunrise period and/or monitoring service: A sunrise period for trademark owners allows trademark owners to secure their brands before the general public. This will generate goodwill among the trademark community for the Social Network TLD.
3. A Whois database of usernames: The Whois database allows trademark owners to look up who has registered a domain to help determine if it’s someone with legitimate rights to the name.

Social network TLDs will likely have some additional privacy controls in place compared to today’s typical Whois, but nonetheless ownership of the user's domain name would likely be disclosed to rights owners and law enforcement that provide bona fide requests for such disclosure.

Overall, adopting these rules will help the Social Network TLD’s lower their legal costs, avoid distractions to their business model and enlist the very business partners they need to create a viable business. It is a win-win for social network operators and brand owners.

Integrating trademark rights into business strategy is not so bad. In fact, Facebook already experimented with this last year when they allowed trademark owners to reserve vanity Facebook names ahead of the general public. The move prevented the legal headache of dealing with thousands of irate trademark owners finding their brands snatched by whimsical members. Facebook also created some good will among a group of corporate sponsors that will likely be a primary source of revenue for their business.

So, the question arises: Isn’t it just good business practice for today’s social networks to treat usernames by the same rules as domain names? Should existing social networks voluntarily start adopting a trademark dispute policy and other brand policies even if they are not required to?

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