Social media sites are transforming not only the daily lives of consumers, but also how companies interact with consumers. Here at Morrison Foerster, across all of our practice groups, we are seeing complex, cutting-edge legal issues arising out of social media. As with the Internet boom during the mid-to-late 1990s, social media is generating new legal questions at a far faster pace than the law’s ability to provide answers to such questions. In an effort to stay on top of these emerging issues, and to keep our clients and friends informed of new developments, Morrison Foerster publishes this blog devoted to the law and business of social media.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.Aaron’s practice focuses on advising both established and emerging companies in a variety of data- and technology-intensive sectors, including software, SaaS, cloud-based technology, digital media (social media, AR/VR, gaming, streaming media, AdTech), AI, healthcare, consumer electronics, e-commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on branding and marketing, trademark licensing, and content-related transactions, as well as the intellectual property aspects of mergers, acquisitions, asset spin-offs, and private equity investments.He has represented clients such as Autodesk, Meta, OpenAI, Splunk, Konami, Kaiser Permanente, SoftBank, Visa, and Yahoo, among others.Aaron has been recognized by numerous publications for his work on market-defining technology transactions. He is currently ranked by Chambers USA for “Technology Transactions.”Aaron also serves as co-editor of Socially Aware, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics. Aaron is also a sought-after speaker on new and emerging areas of law, and is a frequent presenter and panelist at conferences and legal services programs. In addition to his active practice, Aaron regularly provides pro bono assistance to various nonprofit and charitable organizations such as Common Sense Media and the Starlight Children’s Foundation. He is a member of the board of directors of California Lawyers for the Arts.While in law school at the University of California, Berkeley, Boalt Hall School of Law, Aaron served as executive editor of the California Law Review and was elected to the Order of the Coif. Following law school, Aaron served as law clerk to the Honorable William H. Orrick and the Honorable Martin J. Jenkins, both United States District Judges for the Northern District of California.

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Aaron is the chair of our Technology Transactions Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals. Aaron’s practice focuses on advising both established and emerging companies in a variety of data– and technology–intensive sectors, including software, SaaS, cloud computing, AR/VR, AI, gaming, healthcare, consumer electronics, social media, e–commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on the intellectual property aspects of mergers, acquisitions, asset spin–offs, and private equity investments.

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Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.Lawrence focuses his practice on technology transactions and licensing matters. His diverse experience includes advising on SaaS agreements, cross-licensing agreements, research and collaboration agreements, development agreements, and distribution agreements. He counsels a broad range of companies across the software, hardware, life sciences, biotech and FinTech spaces, as well as other entities including universities.He advises clients in connection with general corporate matters including contract negotiations, and leasing and technology placement agreements.Lawrence also serves as co-editor of <a href="https://www.sociallyawareblog.com/" target="_blank">Socially Aware</a>, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics.Prior to joining the firm, Lawrence was counsel at another major law firm. Before earning his law degree, Lawrence was a web consultant, project manager, and web developer in Portland, Oregon, where he managed and consulted on projects using industry methodologies and performed custom development and integration of content management systems.Lawrence was named a Super Lawyers “Rising Star” in 2015 and 2018–2022, and is licensed in both California and New York. Lawrence earned his J.D. from the University at Buffalo School of Law, where he was the electronic systems editor for the Buffalo Law Review and awarded the ABA-BNA Award for Excellence in the Study of Intellectual Property Law.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster.Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions. His clients include technology, digital media and content for television and music, financial services, and communications companies with diverse intellectual property assets and issues.His practice focuses on the legal aspects of developing, licensing, and commercializing technology and intellectual property, as well as negotiating general commercial contracts, including outsourcing transactions, as well as content and data licenses. He regularly assists clients with legal issues relating to licensing and commercialization of digital media and content, digital content that is distributed over the Internet or streamed, mobile applications and social media, as well as the licensing of recorded music for distribution via digital platforms. Anthony is also experienced with issues relating to open-source software, software development, artificial intelligence and machine learning, cloud-based technology, and protection of proprietary information.Anthony has extensive experience working on matters involving disruptive technologies, such as blockchain. He has helped fintech clients with general intellectual property issues in connection with terms of service for online financial products and services.Anthony is an integral part of the outside pro bono legal team for nonprofit organizations based in New York, including advising clients on legal issues regarding entertainment, social media, privacy rights, and the negotiation of outsourcing and service agreements. Anthony received his J.D. from the University of Michigan Law School in 2009. He received his B.S. from Cornell University in 2004.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. He advises clients on general commercial and transactional matters. His clients include technology, media, and communications companies with considerable intellectual property assets. His practice focuses on the legal aspects of licensing and commercializing technology and intellectual property, as well as negotiating general commercial contracts. He also regularly assists clients with legal issues relating to mobile applications and social media.

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Social Links: Statehouse v. Smartphone

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Businesses are increasingly using social networks and online forums for marketing, recruiting, customer service, branding and PR purposes. The UK privacy regulator, the <a href="http://www.ico.org.uk/">Information Commissioner</a> (ICO), has recently published <a href="http://www.ico.org.uk/~/media/documents/library/Data_Protection/Detailed_specialist_guides/social-networking-and-online-forums-dpa-guidance.ashx">new guidance</a> on the use of social networking and online forums. This replaces its 2007 guidance on the subject and is a helpful reminder to companies of their data protection obligations when operating online in the UK.The UK <a href="http://www.legislation.gov.uk/ukpga/1998/29/contents">Data Protection Act 1998</a> (DPA) sets out an extensive data protection regime by imposing broad obligations on those who collect personal data, as well as conferring rights on individuals about whom data are collected. Broadly speaking, data controllers must ensure that personal data are processed in accordance with a number of “data protection principles” set out in Schedule 1 to the DPA, which require that:<ol><li>Data must be processed fairly and lawfully;</li><li>Data must be obtained only for specified lawful purposes and not further processed in a manner which is incompatible with those purposes;</li><li>Data must be adequate, relevant and not excessive in relation to the purposes for which it is processed;</li><li>Data must be accurate and, where necessary, kept up to date;</li><li>Data must not be kept for longer than is necessary;</li><li>Data must be processed in accordance with the rights of data subjects;</li><li>Appropriate technical and organizational security measures must be taken to prevent unauthorized or unlawful processing, accidental loss of or destruction or damage to, personal data; and</li><li>Personal data must not be transferred outside the EEA unless the destination country ensures an adequate level of protection for the rights of the data subject in relation to the processing of personal data.</li></ol>The DPA details certain circumstances where processing is exempt from these data protection principles.The new guidanceThe new guidance confirms that Section 36 of the DPA (which provides a <a href="http://www.legislation.gov.uk/ukpga/1998/29/section/36">domestic purposes exemption)</a> does not cover: (i) an organization’s use of social networks and online forums, or (ii) an individual’s use of social networks/forums for non-domestic purposes (e.g., in connection with running a sole trader business).Accordingly, organizations and businesses that use social media and online forums will have privacy compliance obligations under the DPA: (i) if they post personal data on their own or a third party’s website, (ii) if they download and use personal data from a third party’s website or (iii) if they run a website (e.g. a blog) which allows third parties to add comments or posts about living individuals and they are a data controller of that third-party content.The ICO states that the DPA will apply even where an organization asks an employee to carry out processing via their own personal social media page (e.g., their Facebook or LinkedIn page, or a personal blog) for business purposes. This is because, in such circumstances, the employee will be acting on behalf of the organization, so the processing will be for the organization’s corporate purposes and not for domestic purposes. However, the ICO acknowledges that there are situations where the purpose of using a social network or online forum will not be particularly clear-cut. Some users of social media may use it for mixed purposes, e.g., not only for personal, family and recreational purposes, but also to promote business interests. The ICO states that in such circumstances, individuals will need to ensure that any posts that involve personal data and are not made for domestic purposes comply with the DPA.Of course, the first issue that businesses will need to consider if running an online forum or social networking site is the extent to which they will be considered a data controller under the DPA. <a href="http://www.legislation.gov.uk/ukpga/1998/29/section/1">Section 1 of the DPA</a> states that a “data controller” means “the person (who either alone or jointly or in common with other persons) determines the purposes for which and the manner in which any personal data are, or are to be, processed”.The ICO confirms that the operator of a social network or online forum will be a data controller in relation to any contact information or other personal data that the site operator processes about the users of such network or forum, and will need to comply with the DPA.In relation to any personal data that is posted on the social network or online forum by third parties, the ICO acknowledges that the position is less clear-cut. For an illustration of a situation where an operator would be considered a data controller in respect of third-party posts, the ICO refers to the 2011 case of <a href="http://www.bailii.org/ew/cases/EWHC/QB/2011/3185.html">The Law Society and Ors v Rick Kordowski EWHC 3185 (QB).</a> In this case, Mr Kordowski ran a website, “Solicitors from Hell”, which encouraged the public to name and shame solicitors. Mr. Kordowski moderated posts made by users and charged fees for adding or removing posts. The court held that Mr Kordowski was a data controller under the DPA, and this was not disputed by either party. It was clear that Mr Kordowski had decided the purpose and manner in which the personal data was processed.However, the ICO states that this does not mean that moderation is always an essential factor – even if the site operator does not carry out moderation in advance it could still be deemed to be a data controller. For example, if a site only allowed posts subject to terms and conditions which covered acceptable content, and posts could be removed if they breached those terms and conditions, then the operator would still be determining, to a certain extent, the purposes and manner in which personal data was processed and therefore would be deemed to be a data controller.If a business is deemed to be a data controller of third-party posts, it will need to take reasonable steps to ensure that any personal data posted on its site are accurate and, where necessary, kept up-to-date in order to be compliant with the DPA. The ICO indicates that what amounts to “reasonable steps” will depend on the nature of the site and how active a role the operator takes in selecting, allowing or moderating content. For example, if (i) the vast majority of posts on a site are third-party posts, (ii) the volume of such posts is significant, (iii) posts are not moderated in advance and (iv) the site relies upon users complying with user policies and reporting problems to the site operator, the ICO acknowledges that it would not be reasonable to check every individual post for accuracy.However, the ICO would consider “reasonable steps” to include:<ol><li>having clear and prominent policies for users about acceptable and non-acceptable posts;</li><li>having clear and easy-to-find procedures through which users can dispute the accuracy of posts and ask for them to be removed; and</li><li>responding to disputes about accuracy quickly, and having procedures which enable access to content to be suspended until the dispute has been settled.</li></ol>In addition, the ICO states that it expects site operators to have appropriate internal policies in place to deal with: (a) complaints from individuals who believe that their personal data may have been processed unfairly or unlawfully because of derogatory, threatening or abusive third-party posts, (b) disputes between individuals regarding the factual accuracy of posts; and (c) complaints about how the organization processes personal data provided by users.Best practicesBusinesses should take note of the new guidance when using social networks and online forums. In addition, we suggest the following best practices to ensure privacy compliance.<ul><li>Understand the privacy terms that apply in respect of your use of third-party social networks and online forums.</li><li>Understand the privacy risks associated with users posting third-party content and take appropriate steps to minimise such risks.</li><li>Put in place appropriate terms of use and privacy policies.</li><li>Ensure that privacy policies comply with the DPA and: <ul><li>include a description of how user data will be processed/used;</li><li>ensure that appropriate consents are obtained from users; and</li><li>limit the company’s liability for privacy breaches by users.</li></ul></li><li>Don’t keep personal data that has been collected via social networks and online forums for longer than necessary.</li><li>Obtain the consent of employees if any of their information will be posted to social networks or online forums.</li><li>Create an appropriate social media policy, and provide training to employees to ensure employees understand their obligations in respect of their use of social networks and online forums including: <ul><li>setting out rules about accessing social media sites at work;</li><li>making clear in what circumstances employees will represent the company and in what circumstances employees will act in a personal capacity and the rules relating to each (e.g., when acting in a personal capacity, employees       should write in the first person (“I” as opposed to “we”) and should include a prominent disclaimer stating that the views expressed are their own, and not necessarily those of their company); and</li><li>making clear to employees that they must not post personal information about colleagues on social networks and online forums.</li></ul></li><li>Put in place practical security measures for employees who have been approved to administrate/operate blogs and social media pages.</li></ul>Other social media issuesOf course, in addition to data protection and privacy, there are a whole host of other issues that businesses need to consider as part of their social media strategy, such as:<ol><li>employees use of social media (monitoring, policies, training, liability, disclosure of confidential/proprietary information, etc.);</li><li>use of social media in recruitment;</li><li>security;</li><li>crisis management and damage to company reputation;</li><li>protection and infringement of intellectual property rights;</li><li>advertising, marketing and promotion rules;</li><li>consumer protection/unfair terms and trading rules;</li><li>user-generated and third-party content (user terms and conditions, notice and takedown policies and procedures, disclosure of material connections with third-party bloggers, etc.);</li><li>insurance; and</li><li>applicable industry rules and regulations.</li></ol>Lastly, where a UK organization is a global business, it will be important for the organization to ensure that individuals outside of the UK are not unintentionally targeted by any UK social media campaigns; or if they are targeted intentionally, it will be important for organizations to consider any specific rules that they will need to comply with in the applicable jurisdiction.

New Guidance From UK Privacy Regulator on Social Networking and Online Forums

Businesses are increasingly using social networks and online forums for marketing, recruiting, customer service, branding and PR purposes. The UK privacy regula

New Guidance From UK Privacy Regulator on Social Networking and Online Forums

We’ve all seen the ads on the Internet—computer-optimization software designed to make your old PC operate like it’s brand new. Many consumers see these advertisements and, frustrated with the performance of their computers, purchase such software with the aim of speeding up their sluggish machines. But what happens when the software doesn’t work as advertised? The answer for Christopher Rottner was to file a lawsuit.In <a href="https://casetext.com/case/rottner-v-avg-techs-usa-inc">Rottner v. AVG Technologies, U.S., Inc.</a>, Rottner claimed to have downloaded a free trial of AVG Technologies’ program, PC TuneUp. After an initial scan of his computer, PC TuneUp reported that Rottner’s computer had critical errors, which it had repaired. The program then recommended that Rottner purchase the full version of the software to maintain the integrity of his computer. He did so. After installing the full version of PC TuneUp and an update, however, his computer crashed, causing Rottner to lose all of his personal files—yet he had purchased PC TuneUp to prevent this very scenario from occurring.Rottner filed a class action lawsuit in federal court in Massachusetts against AVG Technologies (“AVG”), alleging that AVG had falsely inflated the effectiveness of PC TuneUp. More specifically, Rottner alleged six different bases for the lawsuit, but one is of particular importance: a claim for breach of express warranty. AVG moved to dismiss Rottner’s claims, which the court granted in part, but denied with regard to the breach of express warranty claim.Applying Massachusetts choice-of-law principles, the Rottner court initially determined that Delaware law applied to this dispute because of the Delaware governing law provision in PC TuneUp’s End User License Agreement (EULA). The court then had to determine whether PC TuneUp constituted a good or a service because the <a href="http://delcode.delaware.gov/title6/c002/sc01/index.shtml">Delaware Uniform Commercial Code (UCC) </a>governs only the sale of goods and has specific provisions with regard to express and implied warranties. AVG argued that its agreement with Rottner was for the sale of a service, not a good, and that the UCC was inapplicable to the dispute. The court, however, disagreed.Delaware, like many other states, uses a “predominance test” when assessing whether a contract is for the sale of goods or services. <a href="http://blog.ericgoldman.org/archives/2013/06/court_applies_a.htm">This test can be rather complicated</a> when dealing with software because software is not easily classified as a good or a service in any given context.For example, under this test, software may constitute a service when it is specifically designed to accommodate a business’s unique practices (i.e., software that is designed to operate a manufacturing company’s patented machines).In contrast, software may constitute a good when it is an off-the-shelf commodity, such as word processing software. The Rottner court concluded that the PC TuneUp software was a good, and not a service, noting that PC TuneUp was generally available; that it was not specifically designed to meet Rottner’s computer needs; and that Rottner was able to purchase, download and install PC TuneUp in a single transaction.The court’s characterization of PC TuneUp as a good meant that the UCC’s provisions regarding express and implied warranties applied to the sale of PC TuneUp. The UCC states that express warranties are created when a seller makes a promise to a buyer about the goods, or when a seller offers a description of the goods (meaning that the goods must conform to the description). The court also noted that a clause “generally disclaiming ‘all warranties, express or implied’ cannot reduce the seller’s obligation with respect to such a description.”In Rottner, the EULA for PC TuneUp included an express warranty that the software would “perform substantially in accordance with the applicable specification.” Rottner argued that this language was vague and undefined—and the court agreed. Without a meaningful definition of PC TuneUp’s “applicable specifications,” the court found that the “only rational recourse for the consumer is to turn to the advertising claims and the claims broadcast by PC TuneUp itself as the ‘applicable specifications.’” In its advertisements, PC TuneUp purported to boost Internet speed, eliminate freezing and crashing, optimize disk space and speeds, extend battery life, protect privacy, monitor hard drive health and restore the PC to its peak performance. The court held that—even if the EULA’s express warranty were not vague—these representations constituted an express warranty of PC TuneUp’s functionality. That is, the court looked beyond the EULA’s express warranty to define its provisions. Rottner serves as a reminder that software companies should be very careful when advertising their products and should take care not to overstate their functionality.Rottner also brought a claim for breach of the UCC’s implied warranty of merchantability, but this claim was dismissed. The implied warranty of merchantability covers a range of buyer’s expectations in a transaction, including the expectation that goods are fit for the ordinary purposes for which such goods are used. Unlike Massachusetts law, which Rottner argued unsuccessfully was the applicable law, Delaware law allows merchants to disclaim the implied warranty of merchantability so long as the disclaimer is conspicuous to the consumer and specifically mentions merchantability. The court dismissed Rottner’s claim for breach of implied warranty because AVG’s EULA disclaimed the implied warranty of merchantability in all capital letters.Rottner v. AVG Technologies has important implications with regard to software lawsuits. First, the decision serves as a reminder that a company’s advertising claims may be regarded as express warranties, especially if, as in Rottner, the company’s EULA incorporates a vague express warranty.Second, the more commoditized and generic the software, the more likely such software may be treated as a good rather than a service, at least under Delaware law. This tendency to treat commoditized software as a good should encourage software developers to be very clear in their EULAs regarding their express warranties because they are often operating in a gray area of the law.Finally, a software vendor should be aware of the significant differences among states regarding these issues and should choose wisely in selecting a particular state’s law to govern the vendor’s EULA, including any warranty provisions in such EULA.

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Court Finds Uniform Commercial Code Applies to Commoditized Software

Court Finds Uniform Commercial Code Applies to Commoditized Software

We’ve all seen the ads on the Internet—computer-optimization software designed to make your old PC operate like it’s brand new. Many consumers see these adverti

Readers of our blog may remember <a href="http://investing.businessweek.com/research/stocks/private/person.asp?personId=610984&privcapId=90406&previousCapId=90406&previousTitle=Bigfoot%20International,%20Inc.">Leonard Barshack</a> as the co-founder of <a href="http://web.archive.org/web/19970404164357/http:/www.bigfoot.com/">Bigfoot</a>, 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 <a href="http://s3.documentcloud.org/documents/703454/143267425-barshack-v-twitter-sun-valley-cv-13.pdf">Barshack v. Twitter</a>, a suit filed in Idaho’s Blaine County District Court on May 6, 2013 against Twitter and Sun Valley Company, the owner of <a href="http://www.sunvalley.com/">Sun Valley Resort</a>.According to the <a href="http://s3.documentcloud.org/documents/703454/143267425-barshack-v-twitter-sun-valley-cv-13.pdf">complaint</a>, Barshack began using the Twitter handle “<a href="https://twitter.com/sunvalley">@SunValley</a>” 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 <a href="https://twitter.com/sunvalley_">@sunvalley_</a>.Over the next few months, Barshack contacted Twitter multiple times by mail, the contents of which are attached as an exhibit to Barshack’s <a href="http://s3.documentcloud.org/documents/703454/143267425-barshack-v-twitter-sun-valley-cv-13.pdf#page=7">complaint</a>. 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 <a href="http://s3.documentcloud.org/documents/703454/143267425-barshack-v-twitter-sun-valley-cv-13.pdf#page=17">exhibits</a>. 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 <a href="https://twitter.com/IWasSunValley">@IWasSunValley</a>, 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 <a href="https://support.twitter.com/articles/18366-impersonation-policy">impersonation</a> 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 “<a href="http://tsdr.uspto.gov/#caseNumber=929749&caseType=US_REGISTRATION_NO&searchType=statusSearch">sun representing a human face or an animal</a>”; the other was “<a href="http://tsdr.uspto.gov/#caseNumber=85260154&caseType=SERIAL_NO&searchType=statusSearch">a sun positioned above and to the right side of the words ‘Sun Valley’</a>.” 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.

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Whose @SunValley Is It?

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 re

Whose @SunValley Is It?