By Paul Alan Levy, originally posted on Public Citizen’s Consumer Law and Policy blog.
Coventry First is in the viatical business. It buys life insurance policies hoping to profit from payment of the insurance proceeds when the insured dies. It recently got a spate of publicity for its trademark action against one of its critics who anonymously set up a parodic Twitter account, using the Twitter name coventryfirst, to publish a series of messages focusing on the ghoulish aspect of Coventry First’s business —the sooner the insured dies, the better the return on the investment. As one blogger noted, “it has been criticized as an industry that basically bets on death.” Coventry then sent a subpoena to Twitter demanding the identity of the account holder.
We at Public Citizen have defended consumers’ rights to use trademarks in domain names, Facebook account names, titles and meta tags of web sites and web pages that criticize the trademark holder. The ability to put the company or product name in those locations is important both because it identifies the subject of the criticism and, in many cases, may help consumers who are using search tools to find information about companies to find criticisms as well as the companies’ own self-aggrandizing web sites. We have also been concerned about efforts to overcome anonymity based on legal claims without a realistic chance of success because it puts speakers at risk of retaliation for speaking out against powerful and well-connected companies and politicians, and our client was worried about what she considered to be Coventry First’s pleasure at using its economic clout against perceived enemies. We were thus happy to help the Twitter user defend herself against the suit. We thus undertook to file a motion to quash the subpoena.
In this effort, we were aided by a tactical misstep by Coventry First’s counsel at Cozen O’Connor — instead of following the federal rules by filing a motion for leave to take early discovery, the lawyers simply sent a subpoena to Twitter. It is unclear why they took the shortcut, because such motions are filed ex parte and it is only the rare trial judge who looks behind the ex parte motion and requires a showing sufficient to overcome the First Amendment right to speak anonymously. As a practical matter, the First Amendment issues normally come up only if the Doe defendant learns of the ensuing subpoena, finds a lawyer, and files a motion to quash. Twitter is a strong defender of Does’ right to notice, even in criminal cases when under strong pressure from the prosecution not to give notice — as Wired put it, Twitter has “show[n] guts and principles” on this issue. So, having taken the shortcut, once the Doe found counsel, Coventry First faced a significant risk of discovery sanctions; it then had to weigh that risk in deciding whether to persist with litigation over 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. Our motion to quash was to be filed this morning; late yesterday afternoon Coventry First dismissed its lawsuit.
As Joe Mullin pointed out in his early article on this case, the Twitter name coventryfirst pushed the envelope on Twitter’s own guidelines, which treat the adoption of another’s name for a Twitter account, without any additional letters, as improper “impersonation” that can be stopped by a simple complaint to Twitter. Once that policy was called to her attention, our client changed her Twitter name to CoventryFirstIn (as in, Coventry First Insurance); she had previously added disclaimers to her page to make clear the critical nature of her Twitter page.
Trademark law can protect free speech rights, but Twitter is, of course, free to set its own rules for its micro-blogging platform. Still, it is unfortunate that Twitter takes such a rigid posture, given the large body of law that has grown up authorizing the use of marks in domain names and the like and rejecting the argument that there may be initial confusion about the source of the name. Courts have recognized that such initial confusion will normally be dispelled once Internet users reach the critical web site, and have understood that the values of free speech and fair use can trump mere possibilities of confusion. And to the extent that Twitter’s policy prevents the parodic use of the mark as the Twitter name, it may hamper Twitter users who want to take advantage of the search function to bring their criticisms more forcefully to public attention.
I compliment Twitter’s willingness to discuss its policies with me, and I recognize that it has to balance free speech rights with the possibility of being sued by trademark or right of publicity holders without the protection of section 230 immunity, but I hope it will reconsider its stance on this point.
Its impersonation policy already encourages parodic account holders to place disclaimers in the bio and to make sure that the tweets themselves are not misleading about source. Even beyond that, the policy shows flexibility in the direction of protecting trademark holders — even if a user otherwise “follows all of the above recommendations,” Twitter may ask her to make changes “if an account is found to be deceptive or misleading.” By the same token, Twitter should be willing to consider leaving an account name in place if, when its use is viewed as a whole, the Twitter account is not deceptive or misleading.
Do Such Trademark Suits Make Sense?
Trademark owners, for their part, should certainly think about whether it is sensible to pay thousands of dollars to hire a trademark lawyer to file a lawsuit when a simple message to Twitter may wrest a Twitter name away from a critic. Indeed, as Venkat Balasubramani pointed out, an attachment to the complaint, showing the appearance of the coventryfirst Twitter account just before the suit was filed, indicates that it had only five followers. Today, no doubt as a result of the attention paid to the case, that number is up to sixteen, and it may go still higher.
In the circumstances, where Twitter’s policies are likely more protective of their interests than the Lanham Act, it is hard to see litigation as any more than bullying. And given the Streisand effect, it may be a counterproductive form of bullying.
Paul Alan Levy is a senior attorney for the Litigation Group at Public Citizen and blogs regularly on Public Citizen’s Consumer Law and Policy blog. His work has helped define many of the basic tenets of Internet Freedom of Speech case law.