Note from Dominic: this post was written by my good friend Raphael Majma, who is also a lawyer. Locate him on the Twitter and thank him for the post.
Over the last few days, I’ve been keeping my eye on Twitter. No, not to do a vanity check up on my follower numbers, but to search for “Marvel,” “Iron Man,” and “Spider-Man.” When I search for a few Marvel Comics related keywords, a strange thing happens:
There are two things we have to understand: Promoted Tweets and Search terms as copyright infringement. Promoted Tweets start off like any other Tweet, except advertisers pay for them to gain better placement on a user’s Twitter page or in their search results. In the case of the latter, advertisers can purchase the rights to certain search terms. If this sounds familiar to you, then you’ve probably read Rescuecom v. Google.
Twitter and Google both allow users to search for information. In addition to the user’s search results, Google also provides ancillary “context-based” advertising. In simpler terms, the stuff on the side of your screen that you never click on. One of Rescuecom’s competitors bought ad space from Google that would direct people looking for “Rescuecom” to the competitor’s site. Even though it was attached to a “Sponsored Link” tag, Rescuecom argued this was misleading and filed suit against Google for allowing competitors to purchase trademarked keywords.
To know why Rescuecom made such a stink, you’ll need to know a little bit about trademark law. In the simplest possible terms, trademarks protect brands. These brands are given protection depending on a number of factors, including use of the brand in commerce. When a brand is improperly used by a competitor, which means a number of things including misleading the consumer base, the brand owner can file suit.
The court ultimately decided that Google’s use of Rescuecoms trademarked keywords was an improper use of a trademark in commerce. The court’s decision was based on the fact that Google used and sold the Rescuecom trademark as a part of their advertising services. It’s not that it appeared as a searchable term, it’s that the term was suggested to and sold to competitors.
So what does this mean for DC? It all depends on how you view Twitter. Twitter isn’t a search engine and doesn’t actively refer you to competitor products. In fact, as of writing this my most recent check of “Spider-Man” on Twitter brings this up:
There’s no question in my mind that this constitutes a use in commerce. Spider-Man is pretty clearly trademarked by Marvel comics and DC is using that term to give their new comic initiative a boost. But does this mislead anyone? Is there a misappropriation when it leads to comments by Twitterers that offer no confusion outside of why on Earth someone would play Spider-Man 3?
In an interesting turn of events, as reported by the folks over at BleedingCool, Marvel has gotten in on the fun and has purportedly purchased DC related keywords on Youtube. You’ll have to see where the keywords showed up to believe it.