Here’s the scenario: You’re a well-known athlete. You’ve worked hard to become the best in your game. You wake up one morning, grab your coffee, sit down at your computer and start to read the morning’s news. Much to your chagrin, you come upon a story about …. you. Apparently, while you were sleeping, you used Twitter to begin “trash talking” players of an opposing team and making derogatory jokes about the deaths of former players in the league. But, you don’t have a Twitter account -- you don’t even know how to “tweet.” Yet, your name is now associated with those damaging comments and it’s all over the Internet and on the news. What do you do? What can you do?
Your Persona Can Be Hijacked Online
Although you may think this scenario seems far-fetched, it isn’t. Tony La Russa, manager of the St. Louis Cardinals, found himself in a similar situation; he channeled his outrage into filing a lawsuit against Twitter to stop the imposter account. Other examples abound. A fake “tweet” supposedly from Ben Roethlisberger, Pittsburgh Steelers’ quarterback, said he had cancer. A fake Facebook account allegedly belonging to hockey star Brayden Schenn posted racist comments just prior to the start of a game, causing public uproar and condemnation of Schenn.
These high-profile examples underscore how important it is for sports teams and athletes to protect their intellectual property rights on online social media platforms.
Crash Course in Trademark Rights and Rights of Publicity
It can be helpful to understand the difference between trademark rights and rights of publicity. Trademark law is designed to protect an entity that is the source of a good or service. Famous sports teams and high-profile athletes have been recognized as having, at a minimum, common law trademark rights in their names.
Rights of publicity, on the other hand, are inalienable rights owned by every person in their own name, image and likeness. Laws protecting rights of publicity prohibit the commercial exploitation of a person’s name, image and likeness without permission, whether you’re a celebrity or not.
How to Protect Your Brand on the Internet
Social media has changed everything--including how fans, teams and athletes interact with each other. Facebook, MySpace, Twitter, YouTube, and a number of “apps” and mobile platforms seem as though they were custom-designed to feed sports fans’ obsessions. The unprecedented access that fans now have to every move their favorite player makes on and off the field can be both a benefit and a burden to the athlete. There is no question that there is value and advantage in exploiting the emotional connection a fan has with a team or athlete, which can directly translate into significant endorsement deals. On the other hand, as demonstrated above, that same access can also cause significant harm to a team or athlete’s reputation.
That’s why it is important to understand and adopt proactive enforcement policies and be vigilant in monitoring Internet activity regarding your team and/or name. Here are some tips to consider.
Tip #1: Create An “Official” Website
Teams and athletes need to have an “official” website. Here, you will provide fans, media outlets and the general public not only with accurate information about yourself, but also an “experience” of what your brand represents and who you are. This will help build the requisite “good will” in your brand that is necessary to protect it. Choose a domain name that is identical to or that closely resembles the team’s or athlete’s name (e.g. www.denverbroncos.com) so that your fans can quickly find you and separate your site from the imposters.
Tip #2: Create “Official” Pages on Social Media Sites
You also should create “official” pages on all of the major social media sites, including Facebook, MySpace, Twitter, and YouTube as well as on new-comers such as Google+ and FourSquare and then link them to your “official” website. This will help guide fans away from imposter sites and pages. In this same vein, sports team managers should consider including links to all players’ “official” sites on the team’s “official” site, and make sure to include links to the players’ “official” social media pages so that fans are not confused by the “fakes.”
This will also help serve as a resource for news services and the public, making it easy for anyone to check whether information released to the public was “fake” or not. For example, sports teams can help diffuse fake news stories and maintain a consistent brand message by keeping a close relationship between “official” team-directed material on social media and “unofficial” athlete-generated content on social media. Finally, don’t forget about putting up a page on Wikipedia about yourself or the team; it’s another platform from which to present your brand.
Tip #3: Put the Kibosh on Social Media Imposters
In the event an imposter is squatting on your name, most social media sites provide a means for trademark owners to protect their marks within the site and guard against imposters. Facebook and Twitter both have policies in place whereby trademark owners may file grievances with either company to have a particular page removed from their site and replaced with your “official” page. Twitter also allows accounts to be “verified,” a process by which Twitter places a blue check next to your Twitter name to let followers know that the page is authentic.
Tip #4: Actively “Police” Your Mark
The “Internet police” don’t exist so it’s up to you to actively monitor what is happening on the Internet in relation to you and your brand. Internet users can be fooled by fake websites and social media pages because there are so many of them out there! At first glance, it can be very difficult to tell which ones are real and which are fake. Therefore, it’s up to the team, the athlete, or their publicist(s) to ensure the risks and responsibilities are managed appropriately. There’s no hard and fast rule as to how often you should patrol the Internet for “fakes”; the more high profile you are, the more likely it is that you will have to patrol the Internet daily.
Regardless, you have to be vigilant in updating your social media platforms and maintain regular dialogue with your fans. Failure to actively participate on and patrol your sites will leave you vulnerable to attack and possibly result in a significant amount of time being invested to rehabilitate you or your brand.
Tip #5: Root Out Squatters
As a note of caution, be on the lookout for “squatters.” “Cybersquatters” are people who register domain names with the intent of depriving the trademark owner of the name and/or deceiving the public. Often, cybersquatters are looking to hold the domain name ransom until the trademark owner comes calling, preferably with money in hand.
“Squatters” also abound on Twitter, including “typosquatters.” A recent example of this involving Tim Tebow, after the Denver Broncos announced that they were signing Peyton Manning and speculation abounded as to where Mr. Tebow would land, caught the national media by surprise. Someone who was not Mr. Tebow created an account on Twitter “@TirnTebow”, replacing the “M” with a lowercase “RN,” and then tweeted, “It would be nice to play for a team in FL, preferably the #Jaguars….” This imposter then starting replying to Twitter accounts, including other NFL players’ accounts, and interacting with everyone from fans to Tebow imposter accounts. Much to their chagrin, the tweet was picked up and re-tweeted by the national media, including ESPN, which had to later issue an apology.
In the event you find yourself in either situation, it is best to contact an attorney who has experience in Internet trademark disputes, who can help guide you through your legal options.
Tip #6: Protect Yourself from Cybersquatters
One means of protecting yourself from cybersquatters is to register other domain names that incorporate your trademark and describe your services or geographic location (e.g., www.broncofootball.com; www.boisebroncos.com). Think about purchasing domain names that incorporate a common spelling or typographical errors (e.g. www.denverbroncosl.com, a case where the “L” key is just above the “.” key). You may also want to consider registering domain names that could be used to tarnish your reputation (e.g. www.ihatethedenverbroncos.com).
As for fake Twitter accounts, the Twitter Rules forbid impersonating another with an intent to deceive and can be removed. Although, as in the case of Tim Tebow above, it is important to remember that you have to be diligent and act quickly to bring down an imposter who is doing actual damage to your reputation, otherwise you may be too late to reverse what’s been done
Tip #7: Be Able To Laugh at Yourself
There are a number of sites on the Internet that are a parodies of famous teams or athletes. In fact, there are a growing number of Twitter accounts that are created for the sole purpose of being funny (e.g., @LeBronJamesEgo; @VeryFakeAlDavis). As a society, we tend to excuse and reward funny sites and/or accounts, particularly when the celebrities being mocked takes themselves way too seriously. There is little you can do about these accounts given their protection under the First Amendment--unless they cross the line and become defamatory. If the opportunity presents itself, embrace the parodies -- you’ll end up appearing more “human” to your fans.
Tip #8: Think Before You Post
The direct access that fans have to athletes and that athletes have to their fans is unprecedented. For the most part, it’s been a good thing for both parties. As an athlete or team manager, however, it’s easy to get caught up in the moment and think that what you have to say right then is worthwhile and meaningful. Instead, you run the risk of saying something inappropriate, thereby sticking your proverbial foot in your mouth.
Rashard Mendenhall found this out the hard way. Mendenhall tweeted some controversial statements about Osama bin Laden and 9-11 that brought him negative and unwanted national media attention and resulted in considerable public outrage. Soon thereafter, he lost an endorsement deal with the Champion sports apparel company. Being yourself without alienating people is not easy. On the other hand, there is no greater feeling for a fan to feel like they’ve been heard by their favorite athlete.
Be vigilant. Be proactive. You are responsible for your brand and reputation. If you don’t have the time to “police” the Internet yourself, find a responsible party who can do it for you, such as an attorney, brand management company, or a service like Reputation.com. Forewarned is forearmed.
John Krieger is a partner with Lewis and Roca’s Intellectual Property and Technology practice group. Mr. Krieger focuses his practice on helping clients strengthen and protect their intellectual property assets in both the real and online worlds, including enforcement of the same by way of various administrative remedies and/or litigation.