Setting 13 June as the dawn of its selection drive, Facebook gave the IP community scant notice of a process that could see many brand names snapped up by users who do not own the relevant trademarks – despite a range of procedures that the site has put in place. Each personal username will adopt a standard format that lends itself towards brand exploitation.
Facebook says that it launched the username selection 'to make it easier for Facebook users to identify their profile and share it with others'. The site encourages users to take a series of factors into account when creating their usernames in order to make them memorable. Usernames must be as close as possible to those of the registered users, and chosen for long-term use, as they cannot be sold on to other accounts or otherwise transferred.
The non-transferability clause is one of several measures imposed to discourage brand abuse by those who are eligible. As Facebook stated: 'Only those who created accounts before username availability was publicly announced at 3 pm on 9 June, 2009 will be eligible. This decision was made to prevent people from creating new accounts just to take advantage … We've also reserved certain names that have been brought to our attention in an effort to help third parties protect their intellectual property and other rights.'
In addition, Facebook has created an online complaint form that companies can use to report brand abuse. US law firm Morrison & Foerster – one of many to speak out on the usernames scheme – said that Facebook's measures would reduce the risk 'that users will "squat" on a username in order to sell it to a trademark owner'. However, the firm added, 'the system may still be abused by users who select usernames that potentially infringe on trademark rights … it remains to be seen how individual infringement claims relating to usernames will be processed and resolved'.
Speaking to IP Review Online, Dominic Speller – Domains Manager at leading IP services company CPA Global – commented on Facebook's plan. 'The overriding feeling is that it is good that the site has given rights holders the chance to register their own usernames', he said, but added: 'I think they could have publicised it more. Companies should have been given more time to think about protecting their brands on the site.'
At present, Facebook has closed the submission process that had allowed brand owners to pre-register their marks with the site. This ensured that unauthorised attempts to acquire usernames containing those marks would be blocked. For now, unregistered brand owners who feel they have been infringed by the new usernames are advised to complete the site's online complaint form. However, as online communities are powerful marketing tools driven by freedom of speech on a variety of subjects, Speller stressed that companies should stay alert for any re-opening of the trademark submissions process.
Facebook's usernames plan echoes recent proposals by the Internet Corporation for Assigned Names and Numbers (ICANN) to liberalise generic top-level domains (gTLDs). ICANN's idea, which suggests the parallel launch of gTLDs for several business sectors, and even individual brands, was endorsed in a 5 June interim report by economics professor Dennis Carlton. He argued that existing trademark laws and dispute resolution routes would provide adequate coverage for URLs launched with the new gTLDs. However, other voices – such as the US Department of Justice – have raised concerns that a rash of new domain names similar to existing ones would spawn market confusion and invite infringement.
