July 13, 2011
Coventry First Withdraws Twittersquatting Lawsuit Against @Coventryfirst -- Coventry First, LLC v. Does
[Post by Venkat Balasubramani]
Coventry First, LLC v. Does, 11-cv-03700-JS (voluntarily dismissed)
I previously posted about Coventry First's lawsuit against the operator of the @coventryfirst Twitter account. ("Trademark Owner Sues Over Alleged Twittersquatting--Coventry First, LLC v. Does.") I did not expect the plaintiff to prevail. Perhaps not surprisingly, then, Paul Levy of Public Citizen, who represented Doe, sends word that Coventry First voluntarily dismissed the lawsuit. (See "Coventry First’s Abuse of Trademark Law to Suppress Criticism Falls Apart.")
The dismissal of the lawsuit was precipitated by a procedural gaffe on Coventry First's part. In order to proceed with the lawsuit, it had to identify the Doe defendant, and jump through a few hoops before it sent a subpoena. Coventry First did not jump through the right hoops, and sent a deficient subpoena to Twitter. Twitter, to its credit, did not blindly comply with the subpoena; it passed the subpoena on to Doe's lawyer, Paul Levy. Paul prepared a hammer down motion to quash, and upon being advised of the grounds for the motion, Coventry First withdrew its lawsuit. Even if Coventry First had complied with the rules governing subpoenas, it's unclear that it would have been unable to unmask Doe because this requires some sort of showing that Coventry First had colorable claims.
Paul's post mentions that the @CoventryFirst account was pushing the envelope on Twitter's guidelines for parody and fan accounts, which do not allow for exact matches. In order to bring itself into compliance with Twitter's policy, the account-holder (Doe) added disclaimers, and also added "in" to the username, so the account is now @coventryfirstin.
With more and more companies establishing and relying on a presence on Twitter or Facebook, many of these types of disputes will be resolved by the likes of Twitter or Facebook rather than by the courts. Given that they face risk of secondary liability for trademark claims from brand owners, Twitter and Facebook will probably end up adopting a policy and making decisions that are more favorable to trademark and brand owners. Paul notes that Twitter's policy has a slight brand-owner bias, but it looks fairly nuanced. The fact that Twitter adopted a parody/fan account policy is in itself a win. Also, as mentioned above, Twitter took steps in this case to notify Doe of the subpoena, and this reflects a thoughtful approach on its part.
In any event, it looks like we will have to wait for another case to come along and resolve "the interesting issue of whether the many cases authorizing the use of trademarks in the domain names, titles and meta tags of non-commercial commentary web sites apply equally to Twitter account names." In the meantime, at least you now know who Coventry First is.
Posted by Venkat at July 13, 2011 11:25 AM | Trademark