Social Media, Fan Accounts, & The Issue Of Trademark Ownership
Law-breaker or innocent aficionado: should celebrities (even dead ones) be able to block fan accounts impersonating them? And if the fan is anonymous, should the celebrity be able to hold the social media site accountable for the fan’s conduct?
CMG Worldwide, on behalf of JDI (the exclusive rights owners of the James Dean marks), endeavors to answer these questions in a potentially game-changing lawsuit against Twitter, Inc. CMG seeks to recover damages for Twitter’s willful refusal to terminate the @JamesDean Twitter account after being notified that the profile was using the James Dean mark (as a handle) and likeness (as an avatar, and in tweets) without the consent of CMG.
CMG filed suit against Twitter, and five John Does (including the anonymous creator of the @JamesDean account, above), claiming that both “Does” and Twitter commercially exploited the James Dean marks without authorization or consent. In its complaint, CMG alleges that both “Does” and Twitter are guilty of trademark infringement under §32 of Lanham Act, false endorsement under §43 of the Lanham Act, and misappropriation of Dean’s publicity rights under Indiana State law and the Common Law. 
Ultimately, the dispute boils down to ownership and control over the James Dean mark and whether CMG has the exclusive right to use the James Dean marks online – even in the social media context. CMG states that they want to terminate the @JamesDean fan account because it runs afoul of the Lanham Act by allowing the creator to “reap where it has not sown.” BUT, this theory of liability assumes that the creator intentionally selected the Twitter handle in order to commercially exploit the James Dean mark.
What if, as Twitter concluded after conducting an investigation, the fan created the account only to celebrate and pay tribute to the late James Dean?  Why should CMG be able to block this sort of online use of their marks? And if they can, where do we draw the line between acceptable conduct on fan generated social media pages, and unacceptable conduct?
Hopefully, this dispute (if it is litigated) will provide some clarity. Twitter removed the lawsuit to Indiana Federal Court. So far, Twitter has only stated that their actions are in line with the Lanham Act, and that they firmly contest liability. 
Without a Commercial Use of the Marks, CMG will be (like Dean) “A Rebel Without A Cause”
In order for the court to find actionable infringement here, the court must determine that the “Does’” conduct (registering the @JamesDean handle and using Dean’s name and likeness in its profile and posts) was motivated by some commercial purpose.
§32 and 43 Claims
In order for @JamesDean’s conduct to be actionable, the use of the James Dean mark must be in a manner that Congress can regulate under the Commerce Clause; it must have some commercial aspect. Because the account creator is unavailable to comment on their motivation for registering the @JamesDean handle, their intent can only be inferred from the manner in which the creator operated the profile. Most of the tweets paid tribute to James Dean’s films and his life. The tweets were not derogatory or malicious. The profile did not represent that it was James Dean or in any way affiliated with James Dean. (Doesn’t CMG know that twitter users look for the “verified” status to discern an official page from a fan page?) Furthermore, none of the tweets suggested a commercial transaction.
Moreover, it is still unclear whether the case law that establishes that domain names and cybersquatting are sufficient commercial uses to impose liability can be applied to twitter handles. Domain names and cybersquatting have a more clearly commercial purpose, as they contribute to online sales and advertising. Twitter handles on the other hand, are not clearly selected for a commercial reason.
It is unlikely that the court will find that the account was created with intent to trade upon Dean’s goodwill and reputation, or to unfairly compete with CMG licensees for the use of Dean intellectual property. The court will probably also have to weigh CMG’s rights against the competing speech rights of the @JamesDean account owner. The courts might be wary of offending the First Amendment and stifling free speech online.
Right of Publicity & Related Torts
James Dean’s name and image are undoubtedly valuable. Dean’s name and image are widely recognized and prominent. Generally, a product or good using a celebrity’s name & likeness is actionable, whereas speech or commentary is not. For the aforementioned reasons, the court is unlikely to find that @JamesDean’s use of Dean’s name and likeness is a substantial, non-commercial use, and therefore, protect the speech under the First Amendment. Moreover, because the profile seems to be used for commenting, “Does” and Twitter might be able to offer several defenses.
Note also, that the Communication Decency Act §230, which immunizes service providers from liability arising out of content provided by third parties – here, the @JamesDean account – might immunize Twitter from liability. Twitter does not monitor every user’s activity or have direct control over user-selected Twitter handles and tweets. This lack of control should prove to be a giant hurdle for CMG if the case proceeds to trial.
Implications for the Future
Today, the answers to the posed questions must consider the growing importance of social media as a source of advertising for brands and celebrities alike. Social networking sites like Twitter have become the latest means for businesses to release product information, attract new business, and promote sales. But the law has not caught up with the growing commercialization of social media networks by businesses and celebrities. 
Various questions about the legal implications of the growing commercial use of social media remain unanswered. But one thing is clear: the right to control the online use of marks, and thereby public perception, will be at the center of legal disputes arising out of trademark causes of action online.
Brands and celebrities should have some room to protect their public image in the social media sphere, but should they have exclusive control over all online profiles that utilize their name? Permitting trademark owners to prohibit fan commentary and other like-uses would probably interfere with the free flow of information, and thereby undercut the pro-competitive purpose of trademark law.
If the fan account is not doing anything malicious or deceptive with the account, then why is this an issue? On the other hand, because marketing and advertising are all about public perception, the ability to control the manner in which a celebrity is positioned online is extremely valuable.
 Complaint located here: http://cdn2.sbnation.com/assets/3976359/Complaint_for_Damages_and_Injunctive_Relief__Twitter_.pdf
 CMG Complaint page 6, see Footnote 1
 CMG Complaint page 33, see Footnote 1
 Hollywood Reporter Article by Eriq Gardner, here: http://www.hollywoodreporter.com/thr-esq/twitter-legal-war-jamesdean-678435
 USA Today Article by Tim Evans, found here: http://www.usatoday.com/story/news/nation/2014/02/10/james-dean-estate-twitter/5383823/