It was bound to happen of course—someone sued Twitter for not verifying a “celebrity” or brand account. Mashable reports on a lawsuit brought by Tony La Russa, who is apparently a manager for the St. Louis Cardinals baseball team.

Mashable and others initially reported that La Russa and Twitter had resolved this one. It turns out they haven’t after all. (See “Twitter Says it Will Fight La Russa Suit Over Fake Tweets.”)

So what to make of Mr. La Russa’s claims?

The complaint [link] contains causes of action for: (1) trademark infringement/false designation of origin, (2) cybersquatting/ACPA violations, and (3) emotional/privacy torts. Mr. La Russa’s claims are not terribly strong for several reasons. As an initial matter, as pointed out by Mashable, the obviously fake Mr. La Russa profile only had 4 followers (before it was disabled). La Russa will be hard pressed to show that any appreciable number of people were exposed to the Fake La Russa’s tweets. This doesn’t necessarily fatally undermine La Russa’s claims, but it will affect his damages (if any). So what to make of the claims themselves?

Intermediary Liability is Tough: Twitter allows you to register accounts and transmit content and links. It’s a classic intermediary. Section 230 aside (which has exceptions, including trademark and state IP-based claims) it’s never ever easy to hold an intermediary liable. That’s true in a trademark case as in any other case. (See, e.g., Tiffany v. eBay.)

La Russa’s Trademark Claims Are Weak: Surnames (names of people) typically are not entitled to trademark protection. The Complaint does not allege a registration, and it’s unlikely La Russa would be able to obtain a registration (on the principal register) for his name. A quick search of the PTO database shows one mark for “Tony La Russa Baseball” and the mark (now dead) was filed by Stormfront Studios (incidentally, by Fenwick & West, the firm which represents Twitter). La Russa provided his consent apparently to this filing. Setting aside the issue of whether La Russa’s name is entitled to trademark protection, it doesn’t look like the fake Mr. La Russa was selling any products or services, so there’s no typical consumer confusion-based claim. It’s unlikely Mr. La Russa can make a colorable dilution claim.

Does the ACPA Apply to Twitter Accounts? La Russa’s cybersquatting claims are based in part on a federal statute, commonly known as the ACPA. It prohibits cybersquatting, and has a provision that protects individuals whose names have been incorporated into domain names, but the “personal name” protection is somewhat more limited (it’s a bit tougher to prove bad faith). The bigger question is whether the ACPA applies at all to things like Twitter accounts. I’m not aware of a court having addressed this issue, but logically the answer has to be no—it does not apply. The definition for “domain name” (“any alphanumeric designation which is registered with or assigned by any domain name registrar, domain name registry, or other domain name registration authority as part of an electronic address on the Internet”) does not suggest it covers Twitter accounts. Additionally, the structure of the ACPA and its references to registrars and other domain name actors (etc.) point to the fact that Congress only intended the ACPA to apply to domain names and not things like vanity URLs provided by companies such as Facebook and Twitter.

La Russa’s Personality Rights Claims: La Russa’s personality-based claims may not be preempted by Section 230 (see Prof. Goldman’s post) but these claims suffer from the same general problems above. (Some of the claims may be preempted.) Also, the account obviously stated that it was a parody account, so La Russa doesn’t look reasonable arguing that people were really fooled into thinking he endorsed it. The complaint focuses on the message Twitter transmits “Tony La Russa is using Twitter!” when you punch in his name after Twitter.com. This automated Twitter message (which no one ever reads) is not likely to carry the day.

Fair Use: There’s an obvious fair use argument to be made here. The fake Mr. La Russa’s account made reasonably clear that it was a parody. There is a well established First Amendment right to comment on trademarks, products, and personalities. The use by the fake Mr. La Russa arguably falls into this category. At the least, there’s a colorable argument to be made here.

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Twitter and La Russa will likely settle this dispute before it gets very far. The real issue is how this will change the way Twitter registers accounts. In the same post where it announced it was not settling with La Russa (”Not Playing Ball”) Twitter announced the rollout of its “verified account” feature. It’s too early to tell what exactly this means.

If there’s an easy short term lesson in this whole episode for Twitter, it would be two things. First, respond to all complaints. (At least as a matter of customer service.) La Russa’s lawyer said he tried to tackle the issue with Twitter and received “no response.” Second, set up a complaint procedure (a la eBay’s VeRO). If you set up a procedure and a complainant does not avail him or herself of it, that’s your first line of defense right there. Also, a complaint procedure will bolster Twitter’s argument that it was not aware of any infringements by users and will be a potential defense against liability.