@TWITTERHULK SMASH INFRINGEMENT CLAIMS?
There has been a proliferation of HULK-themed Twitter accounts.
Some of the fun ones I've come across are:
The Boston Globe has a piece by Erin McKean covering this phenomenon - the article notes the differen
t styles employed by the HULKS:
Claims against Twitter are pretty tough, since Twitter is just an intermediary. (See "Tony La Russa's Legal Claims Against Twitter Look Tenuous" and "eBay Mostly Beats Tiffany in the Second Circuit, but False Advertising Claims Remanded.")
As far as claims against the operators of the HULK accounts, the bulk of them fall in the non-commercial category. None of the accounts are selling any products or services that I saw, and this makes trademark infringement, unfair competition, or false endorsement claims tough to bring. (You can see some fine examples of HULK hawking products here ("Hulk Smash Copyright Infringement!").)
How about dilution? I guess there's an argument to be made that to the extent HULK is a famous mark, use of the HULK marks by these HULK-themed twitter accounts dilutes the brand. But, the operators of the HULK accounts have a First Amendment argument that the trademark dilution statute should not reach their actions. As authors of this article note, the recent revisions to the trademark dilution statute incorporate First Amendment defenses:
On to the more important question: who is going to start a @LAWYERHULK (@LEXHULK, @HULKESQ) account?
Some of the fun ones I've come across are:
- BuddhistHulk;
- GRAMMARHULK;
- EditorHulk; and
- feministhulk
The Boston Globe has a piece by Erin McKean covering this phenomenon - the article notes the differen
t styles employed by the HULKS:I wondered as I read the article whether the owners of the HULK family of marks (probably Marvel or some corporate affiliate of its) would at some point try to shut these accounts down.Some Hulks are purely comedy ploys, rooted more in Hulk persona than Hulk’s speech patterns. . . . . Some Hulks are used as parables . . . . [b]ut the most interesting Hulks are those who exploit the incongruity between Hulkspeak Twitter style and the subject matter of the tweets themselves. By appropriating a lowbrow comic book style to talk about highbrow subjects, the people behind these Hulk Twitter accounts can perform acts of stylistic irony.
Claims against Twitter are pretty tough, since Twitter is just an intermediary. (See "Tony La Russa's Legal Claims Against Twitter Look Tenuous" and "eBay Mostly Beats Tiffany in the Second Circuit, but False Advertising Claims Remanded.")
As far as claims against the operators of the HULK accounts, the bulk of them fall in the non-commercial category. None of the accounts are selling any products or services that I saw, and this makes trademark infringement, unfair competition, or false endorsement claims tough to bring. (You can see some fine examples of HULK hawking products here ("Hulk Smash Copyright Infringement!").)
How about dilution? I guess there's an argument to be made that to the extent HULK is a famous mark, use of the HULK marks by these HULK-themed twitter accounts dilutes the brand. But, the operators of the HULK accounts have a First Amendment argument that the trademark dilution statute should not reach their actions. As authors of this article note, the recent revisions to the trademark dilution statute incorporate First Amendment defenses:
Maybe there's some sort of claim under personality rights statutes? I would guess any such claims would bump up against First Amendment defenses as well. Obviously, the trademark owners may want to consider public reaction and weigh the cost benefit here (and the fact that many of the accounts are entertaining!).Cases decided over the past ten years show that the FTDA always provided ample protection to free speech rights. The TDRA, which makes clear that parody, criticism, and commentary are not actionable under federal dilution law, will serve only to strengthen those protections. Moreover, defendants in § 43(a) cases may still argue that their use is a permissible fair use. In short, concerns that the TDRA will threaten First Amendment rights are unfounded.
On to the more important question: who is going to start a @LAWYERHULK (@LEXHULK, @HULKESQ) account?
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