Updated: 4/7/18

In short: Yes, you can trademark a username. If you are using the the username to distinguish a product or service from a market competitor, you can apply for a trademark. You can apply for a trademark even if you are merely using the username to provide information or entertainment, which can be considered services by the USPTO.

In order to register your username, it must be distinct and original enough to identify only one organization or individual’s products. The USPTO can decline an application for a generic or misleading twitter name on those grounds. If you are able to secure a trademark for a username, the trademark will prevent other parties from impersonating you and misleading your consumers. Social media sites such as twitter also offer recourse for the owners of trademarks, should someone attempt to misappropriate your trademark. These sites have inbuilt lines of communication designed to deal with the misuse of trademarks and copyrights, as this is one of the hottest issues in trademark law today.

How do Social Media Sites Handle Trademarks?

Major social media sites like Twitter, Facebook, and Instagram all have their own unique policies on handling trademarks as it relates to usernames.

Instagram

Instagram Trademark and Copyright Information

Instagram spells out its stance as it relates to copyrights, trademarks, etc on its intellectual property help article. More specifically, they address the topic of trademarks and usernames with the following:

Trademark violations may involve 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. (Emphasis added)

What is not a violation?

Using another’s trademark in a way that has nothing to do with the product or service for which the trademark was granted is not a violation of Instagram’s trademark policy. Note that Instagram usernames are provided on a first-come, first-served basis and may not be reserved. (Source)

They are careful to point out that someone else may use your mark on their platform as a username if there is no attempt to confuse consumers. For example, a company that produces hard cider could have registered the username “apple”. As long as they aren’t posting about computer hardware, software, and accessories – it is unlikely Apple Computers would have a case to force them to give up the username on trademark grounds. If there is no confusion, there’s no infringement.

If you feel like someone is using your existing mark in a way that would cause consumer confusion, you can submit a report of a trademark violation to Instagram here: https://help.instagram.com/contact/111608122342794

Twitter

Twitter Trademark and Copyright Information

Twitter explains its trademark policy on this page. Like Instagram, they point out that someone may be using a mark in a way that is outside the scope of the registration (like our Apple example above.) They also provide information on the use of trademarks in Twitter Ads here. Also relevant in this discussion is their stance on username squatting.

Please note that if an account has had no updates, no profile image, and there is no intent to mislead, it typically means there’s no name-squatting or impersonation. Note that we will not release squatted usernames except in cases of trademark infringement. If your report involves trademark infringement, please consult those policies for instructions for reporting these accounts.

Attempts to sell, buy, or solicit other forms of payment in exchange for usernames are also violations and may result in permanent account suspension. (Source)

This can make things tricky if someone has registered your mark, but not set up an account. Twitter’s stance seems to be that if there is no confusion, there is no infringement – and if someone never sets the account up, there is no content that could provide confusion. Essentially, someone could register your mark as their username, never set the account up, and there may be little you can do since there’s little possibility for consumer confusion. On the bright side – if someone attempts to sell you the account, they may take action that could result in you controlling the username.

Given the reach of Twitter as a global platform, they also have a page dedicated to explaining their stance on parody accounts. They provide some specific examples of what would be required for an account to be considered parody:

Bio: The bio should indicate that the user is not affiliated with the account subject by stating a word such as  “parody,” “fake,” “fan,” or “commentary,” and be done so in a way that would be understood by the intended audience.

Account name: The name should not be the exact name of the account subject without some other distinguishing word, such as “not,” “fake,” or “fan,” and be done so in a way that would be understood by the intended audience. (Source)

You can report a trademark issue to Twitter using this form: https://support.twitter.com/forms/trademark

Facebook

Facebook Trademark and Copyright Information

Facebook provides extensive information on their stance as it relates to trademarks on this page: https://www.facebook.com/help/507663689427413 On the topic of usernames, they have a similar stance to Instagram and Twitter:

Usernames are generally claimed on a first-come, first-served basis. This means that you may see a Facebook Page or profile that includes your trademark in its username. While there may be cases where this type of use can be reported for trademark infringement based on the context of its use, please note that not every use of your trademark in a username is necessarily a trademark infringement. The same word used in a different context may not violate your trademark. (Source)

If you feel someone is infringing on your mark, you can contact Facebook via this form: https://www.facebook.com/help/contact/634636770043106

YouTube

YouTube Trademark and Copyright Information

Youtube provides resources for content creators to file copyright complaints, as well as respond to copyright strikes on their youtube account.

You can read more on YouTube’s stance on copyright, as well as the benefits of trademarking your channel name in our article “Can I Trademark a YouTube Channel?“.

Resources for Policing and Enforcing Trademark Rights on Social Media

Policing Trademarks In A Social Media World
Tom Kulik wrote a great piece on policing your marks. This piece in particular stands out as something we all need to be aware of:

Gone are the days where a brand owner can simply send a strongly worded cease & desist (“C&D”) letter to an offending user — nowadays, it is not uncommon for a trademark owner to see its demands disseminated online as part of the rant of the recipient. In some cases, I have even seen a copy of the brand owner’s C&D letter posted verbatim on social media accounts in an effort to demonstrate how inflexible and “mean” they are for even doing so. Frustrating? From a brand owner’s perspective, absolutely. Fair? Not really, but this is the reality of the online world today, and something that must be addressed in the proper context by all trademark owners policing their brands online.

Read the full article here.

That’s My Mark! Enforcing Trademark Rights on Social Media
Andrea Shannon created a helpful article that summarized the problem very well:

Pursuing the usual enforcement techniques can be difficult on social media, particularly when the identity of the infringer is unclear or unknown. The good news for brand owners is that most social media websites prohibit the infringement of another’s intellectual property rights in their terms of service.

Read the full article here.

Registering and Protecting your Trademark

If you are uncertain whether your activities on social media will qualify as a service in the USPTO’s eyes, you should contact our associates so that they may evaluate the strength of your potential trademark application. We’ll work with you through teh simple five step process to secure your trademark.

 

Trademark attorney Xavier Morales

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