The Wall Street Journal had a piece recently about how the recipients of trademark infringement cease and desist letters are increasingly using “online shame” to gain leverage in disputes with trademark owners. As “trademark bullying” is a hot topic among trademark lawyers and in the press, this article picks up on that theme. It highlights a dispute between a small online cookbook entrepreneur who allowed users to save recipes by clicking on a “K” for “Keep” and a trademark owner who asserted rights to the marks K and KEEP in a strongly worded cease and desist letter. In response, the cookbook entrepreneur posted the cease and desist letter online at chillingeffects.org, an organization that “aims to support lawful online activity against the chill of unwarranted legal threats[.]” As the WSJ article reports, the cease and desist letter got attention and the cookbook entrepreneur is now being represented — free of charge — by legal counsel. Continue Reading Using Online Shame as a Defense to a Trademark Infringement Claim May Not Always Be Effective
Our colleagues at Mintz Levin’s Employment Matters blog recently posted an interesting piece about a dispute regarding ownership of a Twitter account. The dispute arose from an employer/employee relationship, but serves as an important reminder about protecting your brand on social media sites.
As alleged in the complaint (PhoneDog LLC v. Kravitz), PhoneDog operates a website that offers cellphone news and reviews and it hired Kravitz as a product reviewer and video blogger. While at PhoneDog, Kravitz was given use of a twitter account “@PhoneDog_Noah” to disseminate information on behalf of the company, and to promote its services. Over time, @PhoneDog_Noah amassed 17,000 followers. After resigning his employment with PhoneDog, Kravitz began working for a competitor but continued tweeting under the @PhoneDog_Noah handle. Although he later changed the account’s name to omit the PhoneDog name, the 17,000 followers continued to follow Mr. Kravitz’s tweets. PhoneDog sued Kravitz, asserting claims for misappropriation of trade secrets, interference with prospective employment advantage, and conversion, based on his use of the PhoneDog handle and his retention of the twitter account’s followers. Kravitz moved to dismiss the case, but on Monday, the court rejected his arguments and the case will now move forward. Continue Reading Who Owns a Company’s Twitter Account (and Musings on Social Media and Trademarks)?