Not So Fast, Qwikster!

Looks like Netflix is having "the best month ever."  Not only are they at risk of losing over 1 million customers in the wake of their decision to split their streaming and DVD-by-mail services into two companies--Netflix for streaming and Qwikster for DVDs--but now Netflix has the privilege and honor of negotiating the @qwikster Twitter handle with the prolific Jason Castillo, otherwise known as the "pot-smoking Elmo with a potty mouth."  Castillo has recently tweeted such gems as:

• "@kill About tired as shyt n I can't sleep"
• "Man so much to plan so much deal so much negotiation n I want a plan when I still have part of it n stiL be making bank"
• "Don't bother telling me who my ex is now dating! Cuzz now I feel bad for the bitch that has my sloppy seconds :)"

And how can we forget the classic....

• "Bored as shyt wanna blaze but at the same time I don't ugh fuck it where's the bowl at spark me up lls"

But enough with the sarcasm.  I think it is safe to say while this situation is comedic, it is also a wonderful example of a backward business strategy when it comes to branding and trademarks.  Before a business or individual selects a new business name or trademark, it is generally advisable to do some level of searching to ensure that the name is available for use, or in the alternative, to assess the amount of time, energy, and money it will take to secure the name.

To be involved in commerce today means more than just picking a name and putting up a sign; it means being part of a conversation.  Social media is made up of a set of very powerful tools, and when properly managed, those tools can take brand identity to the next level.  Social media tools allow consumers to feel that they are interacting not just with a product or service provider, but with an entity that has an identity--a personality, if you will.  It has been said, ad nauseum, that "reputation is everything."  There is a reason for that.  Businesses, just like people, must take proactive measures to protect that reputation.  Reputation defense, in turn, is the value of trademark protection. 

So, you have a name....now what?  How do you ensure that you are in the best position to introduce your "business personality" to the world?   How do you make that critical first impression?

1. Conduct a trademark clearance search:  A thorough trademark search will scour various databases and search engines to determine whether the name has been registered as a trademark on the federal or state level, or whether someone has acquired common law trademark rights--i.e., using the name in connection with a good or service in commerce, but without a formal state or federal registration.  A trademark attorney will analyze each potentially conflicting mark found in the search to determine the level of risk the brand runs in moving forward with their chosen name.
2. Domain Names:  After it has been determined that a name is available for use and registration, it is important that a business owner find out whether the domain name is available, because YOU NEED AN ONLINE PRESENCE.  If a brand owner is lucky, and their chosen domain name is available, they should also consider registering the .net, .biz, and .info variations of the domain name as well--i.e., for example, Qwikster should register www.qwikster.com, www.qwikster.net, www.qwikster.info, etc.  This will protect the brand from many unscrupulous folks who want to confuse and spam the public through domain squatting or other techniques.
3. Social Media Handles:  Before a brand owner introduces its name and business to the public, it is important to do a quick search to determine whether the social media handles for Twitter and Facebook are available.  Social media is how a large and growing number of consumers learn about and choose to interact with businesses today.  This is where Qwikster went wrong.  They launched before even checking to see what was going on with their name on Twitter.  The result...a teenager with a "pot smoking Elmo cartoon" for an avatar was what consumers saw when they went to follow Qwikster on Twitter.  Talk about bad first impressions.  Now, instead of quietly resolving the issue with Jason Castillo, or choosing a different handle or name, Qwikster is showered with negative press, Jason Castillo is getting 15 minutes of fame, and negotiation is likely going to be an expensive nightmare (and equally likely to violate Twitter's Terms of Service, causing more trouble for the fledgling company).  All of this was easily preventable.
4. Important Note Regarding Domain Names and Social Media Handles:  We recommend that a brand assess the entire online landscape at the same time--i.e., domain names and social media handles.  Recently there has been a flurry of namesquatting on Twitter.  What happens is that when a new domain name is registered it catches the attention of a "bot" that is controlled by hackers, spammers, and/or cybersquatters.  Once this bot recognizes that a new domain name has been acquired, it immediately checks Twitter to see if the equivalent Twitter handle is taken.  If the Twitter handle is not taken, the unscrupulous bot will register that Twitter handle before the lawful name holder does--i.e., the person who registered for the original domain name.  This causes headaches and costs money for business owners and service providers who are trying to get their online ducks in a row.  This is why it is important to determine the availability of social media handles for use on Facebook or Twitter, for example, at the same time a brand determines availability of the domain name.  If everything is available, the best course of action is to sit down and register everything--domain names and social media handles--at the same time.

The bottom line for business big and small is this:  DO YOUR HOMEWORK!  Your name is everything.  Often, the only thing you can control is your reputation.  So take the little bit of extra time to do a search and to secure critical registrations to protect your name before you launch or as soon as possible after you launch.  Take a cue from Qwikster and don't fall prey to the "pot smoking potty mouthed Elmos" of the world.