Readers of our blog may remember Leonard Barshack as the co-founder of Bigfoot, a popular Internet mail forwarding service that launched in 1995. Barshack, a resident of Sun Valley, Idaho, recently became well-known once again for his role as plaintiff in Barshack v. Twitter, a suit filed in Idaho’s Blaine County District Court on May 6, 2013 against Twitter and Sun Valley Company, the owner of Sun Valley Resort.
According to the complaint, Barshack began using the Twitter handle “@SunValley” for personal use back in April 2008. Although not the most avid tweeter, Barshack used his handle to tweet on a variety of topics, including skiing—even skiing at co-defendant Sun Valley Company’s resort. According to some accounts, Barshack’s long-term plan for his Twitter account was to use it to promote local businesses in Sun Valley, Idaho. But in October 2012, Twitter notified Barshack that it had “received a valid report and determined that [Barshack’s] account, @SunValley, is engaged in non-parody impersonation,” and re-assigned his account to the potentially less aesthetically pleasing @sunvalley_.
Over the next few months, Barshack contacted Twitter multiple times by mail, the contents of which are attached as an exhibit to Barshack’s complaint. According to Barshack, the only response he received from Twitter was a boilerplate message that included a copy of Sun Valley Resort’s original report of impersonation, which is also included in the complaint’s exhibits. Ultimately, Barshack and his attorney and wife Erin Smith filed suit in May 2013, demanding that Twitter return the @SunValley handle to Barshack.
Barshack’s complaint seeks an injunction prohibiting Twitter from permitting Sun Valley Company to use the @SunValley handle and demands that Twitter return the handle to Barshack. In addition, the complaint alleges breach of contract and breach of good faith and fair dealing by Twitter. According to Barshack’s May 30, 2013 tweet from his new Twitter account bearing the handle @IWasSunValley, Barshack “granted extensions to both SVC and Twitter until mid-june [sic] for them to reply.” The Twitter tagline for Barshack’s @IWasSunValley account reads: “Fighting Evil and Arrogance for as long as I can remember.”
The exhibits attached to Barshack’s complaint show that Twitter’s original decision to re-assign the @SunValley handle to Sun Valley Company was based on Twitter’s trademark and impersonation policies. Twitter’s trademark policy prohibits the use of trademarked material that is intended to mislead or confuse, or has the effect of misleading or confusing others, but, significantly, the policy permits the use of “another’s trademark in a way that has nothing to do with the product or service for which the trademark was granted.” In parallel, Twitter’s impersonation policy prohibits “accounts portraying another person in a confusing or deceptive manner” but permits accounts in which “the user shares [the name of the person being impersonated] but has no other commonalities” or for which “the profile clearly states it is not affiliated with or connected to any similarly-named individuals.”
In Sun Valley Resort’s original October 2012 report to Twitter concerning the @SunValley handle, Sun Valley Resort alleged that Barshack’s @SunValley account was “using artwork from our trademarked Logo along with wrod [sic] mark of Sun Valley,” and that Sun Valley Resort “would like to use this username on Twitter.” One of the pieces of artwork at issue was an illustration of a “sun representing a human face or an animal”; the other was “a sun positioned above and to the right side of the words ‘Sun Valley’.” Barshack’s complaint argues that many local businesses in Sun Valley, Idaho use a similar illustration to promote their companies, and that the trademark registration for the only logo he used—the illustration of the “sun representing a human face or an animal”—had expired due to non-renewal. The complaint further argues that Barshack’s Twitter account had neither the intention nor the effect of deceiving, misleading or confusing others into thinking that the account was operated by Sun Valley Resort, which could be a critical point if Sun Valley Company were to respond with an allegation of infringement of either federal or common law trademark rights.
It is unclear how Barshack intends to use the @SunValley handle if it is ultimately re-assigned to him. Barshack reportedly has stated that if he does reacquire the handle, it would not be for sale (and note that Twitter’s username squatting policy already prohibits attempts “to sell, buy, or solicit other forms of payment in exchange for usernames”). Regardless of the outcome, Barshack v. Twitter may be one of the first cases of its kind in which a user has formally filed suit against Twitter for re-assigning the user’s handle to someone else, and the case underscores the fact that in the world of social media, even if you grab your username first, you might not always be able to keep it.