Trademark holders are rushing to protect their marks on Facebook as a result of the new "username" feature. Facebook recently granted all registered users the right to create personalized usernames in the form of URLs (www.facebook.com/username) because it expedites the search process for individuals and businesses. With the creation of the username, you can now be linked directly to the profile you are looking for instead of wasting time scanning thousands of search results. While it seems the username is a helpful tool, many trademark holders are worried that cybersquatters will jump on this opportunity to wrongfully register their famous marks; thus infringing on their rights. Celebrities are also concerned that users will use the username as another way to wrongfully impersonate them. On the other hand, free speech advocates are afraid Facebook policies aimed at reducing trademark infringements may, in turn, hinder an individuals' First Amendment rights.
Facebook took steps to protect intellectual property rights by allowing trademark holders to file registration forms securing their URL prior to the June 13, 2009 public access date. By filling out a simple form and providing proof of federal trademark registration, a company or individual could pre-emptively block another user from trying to register their mark. For those who didn't make the deadline; however, all hope is not lost. If you seek registration of your registered mark and find that another user has already taken it, you may submit an Intellectual Property Infringment form directly to Facebook to contest the other's use of the username. The Facebook policy states it "reserves the right to remove and/or reclaim any username at anytime for any reason" and will address all issues on a case-by-case basis. This language leads one to believe that disputes will be handled quickly and efficiently.
However, some potential problems are still left to be dealt with. Facebook is only guaranteeing protection for "registered" trademarks, so trademarks under common law protections may not be sufficient to rightfully claim a username if there is a dispute. This will create problems where businesses have the same name, but are operating in different markets and geographic regions. Also, there is no word on how individuals with the same name as famous celebrities will be treated if they registered their username first.
There are also a multitude of First Amendment concerns. As mentioned above, Facebook will assess all username issues on a "case-by-case" basis so there is no telling how strict or liberal it will be in its interpretation of what constitutes "infringement". If Facebook choose a more conservative approach in order to avoid hassle and potential litigation it could severely inhibit protected forms of free speech. For example, "McDonald's" is an established trademark, but if a user wishes to create a username "McDonald's4me" or "McDonald'sSucks" the line gets blurry as to their right to do so. If a user creates a username to express an opinion, viewpoint, parody, or criticism of a well-known corporation it would usually fall within free speech protections; however, since Facebook has created its own standards and determinations that vary from traditional trademark and copyright law this might not be the case. Additionally, if social media like Facebook continue to establish themselves as semi-public forums by reserving rights to remove material at their own discretion, users might have a legitimate reason to worry. This type of behavior could potentially deter speech and creativity if users begin to fear their Facebook account is in jeopardy. Hopefully Facebook can successfully balance protection of intellectual property rights with the importance of promoting free speech. It's efforts to err on the side of caution indicate that while it is protecting its business by avoiding litigation from large IP holders, the users, and the idea of Facebook as a (semi)public forum, may be eroded in the process.
