What Startups Can Learn about Trademarks from Space Hijackers

July 20, 2012

11:00 am

Tech startups tend to get on Twitter and other social media sites quickly to showcase their cool new offering and beg for users and funding. But they need to be careful about stepping on the toes of big, powerful companies and groups who take trademark rights seriously (and are aggressive about enforcing them). Startups can get squashed in the process, even if they think they are playing off or parodying well-known brands in order to get some attention.

Don’t believe me? Well, meet Space Hijackers. This protest group was trying to have a little fun with the upcoming Olympics in London, but ended up getting banned from Twitter for a time, without prior notice. That’s no fun.

Parody, Meet King Trademark

As a spokesman for Space Hijackers recently told The Guardian, “Our latest project is to do with the Olympics and obviously they have got an official chocolate bar and an official TV and the rest of it and we thought what they were missing was an official set of protesters.” The Space Hijackers website reports that London Organizing Committee of the Olympic and Paralympic Games (Locog) “[t]he unelected body in charge of the 2012 Olympic Games confirm our status as official Protesters!”

So what’s a parody? Well, a trademark parody is a form of entertainment involving contrasting an irreverent representation of a trademark with the idealized image created by the mark’s owner. It must differentiate the parody from the original mark and also communicate satire, ridicule, joking, or an element of amusement. Famous parody lawsuits include Tommy Hilfiger’s suit over cologne for pets called “Timmy Holedigger,” Hormel’s suit against Jim Henson over a wild boar Muppet named “Spa’am,” and Jordache’s suit against a manufacturer of plus-sized jeans that were labeled “Lardasche.” I know, they’re funny names.

Wait—Space Hijackers seems to be engaging in parody involving the Olympics, so is it legal to pull its Twitter account?

Twitter Hijacks Handle for Trademark Infringement

Locog first contacted Twitter in May and raised concerns that the “Space Hijackers” account is violating Twitter’s Trademark Policy. The micro-blogging website then suspended the account because it had used a redesigned London 2012 logo in red and black in a way that could “confuse or mislead people into thinking the account was related to an official Olympic sponsor.” After it suddenly lost its account, Space Hijackers responded to Twitter, agreeing not to use the problematic and redesigned trademarked emblem again. Twitter then reactivated the account, which now uses a different image.

The London 2012 image and the words “London 2012” are protected trademarks under the London Olympic Games and Paralympic Games Act of 2006. According to a London Organizing Committee of the Olympic and Paralympic Games (Locog) spokesman, the Act will continue to cover these trademarks even after the games are over and it will enforce the trademark rights aggressively. So the odds are not in Space Hijackers favor, even though parody can be an exception to what would otherwise be a violation of trademark rights.

Twitter’s Trademark Policy is a formal dispute process that a brand owner can use to report potential IP issues. Locog used it to police and protect its marks, instead of contacting the account holder directly or pursuing more expensive options, like an infringement lawsuit. In fact, brand owners are behind the curve if they aren’t taking steps to ‘listen’ to others use of their marks across social media platforms and step in, when appropriate, to stop uses that violate the owner’s trademark rights.

But what type of enforcement procedure is appropriate where parody or a protest account is concerned? Immediately after the account was taken down, Twitter exploded with tweets supporting the Space Hijackers protest group. Wired Magazine, The Guardian, The Hollywood Reporter, and other news outlets quickly covered the deactivation decision with gusto and criticism. This is a classic example of the “Streisand effect,” on steroids. Start-ups may be able to use this kind of viral media attention to gather support for their company and defend their actions. They just have to be ready to deal with some disruption of their social media and traditional marketing channels while the trademark dispute is live.

Tempering Trademark Enforcement Efforts in the Era of Social Media

What if Locog had instead reached out to @SpaceHijackers and publicly interacted with the group through Twitter to raise awareness of its own brand and the fact that they were not officially affiliated with the Olympics? Perhaps Locog could have issued public Tweets mentioning that the Space Hijackers account is an unofficial but good-natured protest account and gather more Locog fans for its even-keeled trademark enforcement and brand awareness activities. And does anyone really think that the Twitter handle “Space Hijackers” is associated with the 2012 Olympics?

I don’t mean to insinuate that Locog was wrong to police potential trademark confusion issues. But some trademark protection efforts involving social media can tarnish a company’s goodwill more than they protect it. This is especially true if those activities don’t take into account the culture and personality of the users on the relevant social media platform. Startups should keep this in mind as they grow and the value of their own brands increase.

Now, more than ever, trademark enforcers need to wear their pragmatic hats. I’ll leave you with a few words of wisdom, courtesy of @Spacehijackers:

Nice touch with the TM indicators.

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Antigone is a recovering BIGLAW lawyer who is now the founder and CEO of Cloudigy Law. She is an unabashed technophile who loves her day job because it’s about 50% technology and 50% law. Follow Antigone on Twitter @antigonepeyton.

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