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Twitter sues Australian friend of mine


uhoh. Deano’s gone and done it now:

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I’m being sued by Twitter!

This firm represents Twitter, Inc. (“Twitter”), owner of the TWITTER trademark and the popular social networking and micro-blogging website at www.twitter.com. We are contacting you regarding your violation of Twitter’s Terms of Service (“TOS”) and spam rules, and your infringement of Twitter’s trademark rights.

Twitter has recently become aware that you have registered and are using the MyTwitterButler.com domain, where you advertise and offer for sale the “My Twitter Butler” software that facilitates aggressive and automatic following to Twitter users. On your website you also claim to have used the same aggressive following techniques. This activity violates Twitter’s TOS and rules.

In addition to the above violations, you are also infringing on Twitter’s trademark rights by using the MyTwitterButler.com domain and the TWITTER trademark. As you are likely aware, Twitter’s extensive and widespread use of its TWITTER trademark provides Twitter with strong and defensible rights in the mark, and has caused the mark to become well-known, if not famous, in today’s online marketplace. Twitter owns trademark applications and registrations for its mark in the United States and numerous other countries for use in connection with its online services, which will provide Twitter with exclusive rights in the mark.

Twitter has expended significant time and financial resources to build up the considerable customer recognition and goodwill related to its valuable TWITTER mark. In addition, in order to protect its investment and valuable intellectual property rights in its trademark, Twitter is required to prevent others from infringing or diluting the value of its brand. In light of the importance and distinctiveness of the mark and the strength of Twitter’s legal rights to its valuable intellectual property, please be advised that Twitter is determined to take whatever steps are necessary to protect its rights in the mark.

Having said that, at this time, we are willing to assume that you did not choose to misuse Twitter’s trademark with the conscious intent of infringing Twitter’s rights or trading off of Twitter’s goodwill. Twitter is concerned, however, that your use of My Twitter Butler and the related domain may cause confusion in the marketplace by suggesting that you and your site are somehow affiliated with Twitter, or are endorsed, sponsored, or approved by Twitter, which would result in an infringement of Twitter’s valuable trademark rights.

In light of the above, we must demand that you immediately:

1. deactivate the MyTwitterButler.com website;

2. transfer the MyTwitterButler.com domain to Twitter;

3. comply with Twitter’s TOS and rules, which includes stopping your aggressive and automatic following and offering techniques and software for others to aggressively or automatically follow; and

4. stop all use of the My Twitter Butler name, the TWITTER mark, or any other name, logo, or domain name that includes TWITTER or any confusingly similar term.

Please respond to me no later than August 24, 2009, to confirm that you have complied with these demands and to obtain domain transfer instructions. Twitter is hopeful that this matter can be resolved quickly and amicably. If, however, you do not comply with these requests, Twitter will be forced to consider suspending your Twitter accounts and take such steps as it deems necessary to protect its intellectual property rights.

We look forward to hearing from you.

Sincerely,

KAW

Dean is in Sydney for the next three hours.

Odd thing is, he doesn’t do anything more than a lot of other services do. And really a lot less aggressively. And his website has

Copyright 2009 © My Twitter Butler – Not related in anyway to Twitter Inc, if I owned Twitter would i be spending my time building this app??

on the bottom. So not sure what Twitter are thinking….  ? My, we hand over a lot of power to our social network hosts, dont we?

What’s the chances of Twitter (and Facebook, which refuses ads with Facebook or FB in them) understanding the eco-system of developers, documenters, trainers, and consultants any time soon?  Is MyTweetButler really that much better than MyTwitter Butler for all concerned? Does Microsoft developers allow their developers to put Microsoft on their products? Or Windows – should it say TwitterCompliantButler instead of MyTwitterButler ?

Laurel Papworth

Named by Forbes™ Magazine in the Top 50 Social Media Influencers globally, named Head of Industry, Social Media (Marketing Magazine™) and in the Power150 Media bloggers (AdAge™). CERT IV Training and Assessment certified trainer (Diplomas and Certificates etc) Adult Education. Laurel has manager Facebook Pages for Junior Masterchef, Idol, Big Brother etc. and have consulted on private online communities for banks Westpac, not for profits UNHCR & governments in SE Asia. Lecturer, social media, University of Sydney for 10 years and Laurel has 11,000 online students. Laurel Papworth personally connects to 6 million followers online and has taught around 100,000 people in the last 10 years how to be social media managers.

31 thoughts on “Twitter sues Australian friend of mine

  1. RT @SilkCharm: Aussie being sued by Twitter http://twurl.nl/vqon27 & yes he’s a friend of mine. The sort I take a file in a cake to, to jail

  2. C’mon Laurel, he’s clearly not using Twitter for its intended purpose. It’s services like that which are probably doing more harm to Twitter than good, and they should have all the power they want when it comes to their social network and people not being “social”.

    I do have a question though. Will they pay him for the domain name and transfer?

  3. Hi Zac,

    As discussed elsewhere i originally wrote the application to find people twittering about baseball.

    so i’d search for MLB baseball team names.

    So i guess what Fenwick and Webb are saying is if i manually log into twitter and click to follow each of the people who just wrote about my application “thats ok”

    http://search.twitter.com/search?q=mytwitterbutler

    BUT if i use a little .Net application to do it “Then I’m breaking the ‘Law’ and must – Cease and Desist”

    My application doesnt ‘cheat or get around’ the twitter API limits eg i cant follow more people in a day than Twitter already allow you to do.

    So basically i’m confused – what exactly am i doing via the API that i cant already do via the website?

    Cheers,
    Dean

  4. @ Dean

    I actually agree with that comment… it should be okay if you’re doing it personally but anything more and I object. I personally feel not a single person or business should be doing anything automated on Twitter.

    But my opinions are just that, and are based on what I believe. As to their legal relevance, well… good luck!

  5. I think its more about trademarks – using their name ‘Twitter’ and making a profit from it (you charge $10 per download). These two things are always no-nos in the trademark/legal world.

  6. TWITTER: i don’t think ANYONE is going to assume this is an official twitter website. have you compared your recently-redesigned, modern, stylish, web 3.0 showpiece to the very “dirty” design that is mytwitterbutler.com..?

    DEAN: having a “not related to twitter” disclose buried out-of-sight in the footer isn’t much of a disclosure. why not quadruple font-size it and put it in the header? it’s not going to make your site look any uglier (than it already is). (no offense – i know the design doesn’t bother you).

    ZAC: has a point. and i think most twitter lovers hate anything that “dirties” our favourite social tool. is mytwitterbutler a dirty app? well DEAN, even you says it is a “quick and dirty” app.

    DEAN: if you built this, and by selling the service it IS in fact a breach of Twitter’s TOS, maybe you should “go bitch to Steve Jobs”, or “go bitch to YOUR mother”? if you are in the wrong you’re going to need an Apple-sized legal team to take on Twitter.

  7. I think it’s worth noting that the competitor services are used by the likes of Robert Scoble and Problogger and don’t come under Twitter fire.

    And, after all, if Twitter didn’t want people to auto-follow, they can block that at the API no?

    As for “aggressive”… Dean’s 1000 or so followers is hardly aggressive. And surely as the creator, he would be spamming all and sundry if genuinely up to no good?

    Cracks you don’t understand the power of social media – 2clicks tried to sue a member of Whirlpool.net.au (broadband community) , and whirlpool sent them bankrupt. If Twitter gets nasty, unfairly, they may bite off more than they can chew.
    http://laurelpapworth.com/anti-marketing-whirlpool-2clix-sucks/

    1. LAUREL: well, it’s interesting and very presumptuous of you to assume i “don’t understand the power of social media”. i’m not sure what you’re basing this opinion on (???) but i hope your personal defense of DEAN is more substantiated with facts.

      Twitter are NOT suing or trying to send DEAN bankrupt (at this stage): it’s a Cease & Desist. He can simply CEASE & DISIST, and there endith the issue. if DEAN is not bothered by the loss of “$10 sales at 5-10 sales a day”, maybe that’s what he’ll do.

      DEAN: has the right to feel annoyed if TWITTER are playing favourites. i personally wish Scoble was wildcard-banned from the internet on a global scale. But one can not cry “fowl ball” because others are successfully breaching TOS and you’re not allowed to.

      DEAN has the right to fight if he wants, and since you do “understand the power of social media” LAUREL, i’m sure you can muster a fight for him. But would either of you be willing to invest in the defense based on the FACTS of the matter?

      There is one simple question that your entire article manages to avoid LAUREL – is DEAN is breaching Twitter TOS..?
      .-= cracks´s last blog ..iamcracks: miracles do happen … at 2:05am. <if>MAMP Pro WordPress MU install = Internal Server Error <then>username MUST = “root”. hal-a-fucking-luya =-.

      1. oh you know, saying you need a big legal team to get the ToS changed shows a lack of knowledge of the power of social media. Various social networks including MySpace, YouTube and Facebook have had in their ToS that the content you upload belongs to them – and the social network has insisted that the ToS be changed.

        It’s unlikely that Twitter would win a case purely under fair competition – this is not an original service and similar ones are endorsed by Twitter. The title including the name “Twitter” is more of a concern.

        Which leaves me wondering where our Twitter Agency stands – a collaborative venture including hundreds of Twitter users. Hence my comment of Twitter not fully supporting their ecosystem of developers etc.

  8. unless of course this “Cease & Desist” letter is not real..?

    if it’s a self-produced letter that turns out to be un-Twitter official, and has been manufactured to simply generate some social media exposure for mytwitterbutler.com, my hat goes off to DEAN and LAUREL. a job well done.

    if it’s real, i stand by my original argument.

    1. Oh I thought you meant that Cease and Desist letters can only be turned around by legal teams. Given the number of times social networks have been activated to have a C&D cancelled, it’s obviously a way forward for Dean – activate a hundred or so thousand twitterers to call “Unfair” and they’ll retract it.

      I believe the developer community are already discussing actions.

      1. i was jointed pointed to the mytwitterbutler.com FAQ’s but someone who’s much smarter than i am, and much-more qualified to comment.

        you don’t need to answer my question of “are they breaching the ToS”; people can form their own opinion here: http://www.mytwitterbutler.com/FAQ.html

        i hope you’ve read them LAUREL..?

        especially the part that reads ……

        “How Do I Increase API Limits ?
        You visit whitelisting request form basically if you indicate you are a developer and are “testing a rest api” application they will approve your IP address to 20,000 calls per hour.

        DO NOT SAY YOU ARE USING TWITTER BUTLER – otherwise they wont approve your request.”

        1. … that’s a pretty common tip. 154,000 pages suggest how to get past the API limits. And it’s just a request – it can be ignored or vetoed. Pulling in the legal team for telling ppl how to request a workaround on API limits is an over-reaction. If in fact that is why they sent it out…

          Again, this service does a lot less than Twollow etc.

          1. fair point.

            but again, your only defense is “someone else (Twollow) is breaching Twitter’s ToS, so why can’t we?” .

            that’s not a defense. if Joey Perone imports 3 tonnes of cocaine and gets away with it, and i try the same thing but get caught, i’m pretty sure the judge is not go to say “well, if Joey Perone got away with, it’s ok for you to do it too”.

            if there is NO ToS breach, then there is no concern for twitterbutler dude, and he can leave his service up.

            ps – no cocaine was imported in the writing of this comment

  9. Here’s my two cents, you just can’t (legally) make money off someone else’s business name without permission (and no doubt without a cut for them). Admittedly, I’m new to the whole social media thing and the power that it apparently holds, but I have been a good ol’ fashioned graphic designer for 13 years and I know you are treading on dangerous copyright ground if you do this – its only a matter of time before you are approached.

    Just because there are other sites/apps/etc being created by clever web developers doesn’t mean its legal. These guys (devs) aren’t stupid in my experience and most know this already.

    Regarding your Twitter Agency Laurel, if you are worried, consult a Intellectual Property Lawyer (I can recommend Jungle Management in Syd/Mel). My other concern is the bird logo which is very similar too…

    Sorry people but my hunch is that Twitter Inc will eventually approach every person/website trading off their name with a C&D letter. Whether its free or not. It is their intellectual property after all, they’ve created it, paid for it, they have people working full time to protect it and quite literally, everything revolves around that brand name. Any ‘little guy’ won’t have much to stand on.

    You could (maybe) get around it by calling the name and domain something else entirely, then in the description say something like ‘a service for Twitter users’. Usually you’d need to include their trademark line as well in your legal (ie. Twitter is a trademark of …) and a disclaimer (X Company is in no way affliated with Twitter…).

    Again, IP lawyers are worth the investment before you register anything because its such a painful thing to change later.

      1. LOL – Had to quickly look up what an API is (I’m not a developer). Assume it is something like a request for developers to submit code/apps to improve their existing service? No doubt Twitter doesn’t pay for this?!

        All I can say is that the letter sent to Dean is a legal one, based on laws established years ago. Perhaps its another case of the law not being able to keep up with the modern world. Copyright is already tricky and frankly its easier to just keep on the safe side!

        Now I’m wondering if there is an copyright agreement between the devs and Twitter (and the rest)? In the offline world at least, the copyright of any new creation (eg. logo, illustration, copy, photograph) automatically goes to the creator, regardless if the client has paid for it or not… unless there is an agreement that passes this copyright to the client. (Trademarking is the registering of a specific logo and/or name in certain regions/countries/industries etc.)

        Hmmm… perhaps another reader knows more about the legal implications of that.

        Bottom line is, though it may be sucky for your friend, the law is the law (outdated or not), and unless he has a bottomless pit of money, a very clever lawyer and endless amounts of time – well, good luck.

        1. ah we are in agreement 🙂

          An API is where you ask developers to create applications that exist elsewhere based on your raw data. So Twitter applications similar to Dean’s are Twollow and SocialToo and maybe Tweetdeck etc.

          Amazon lets people make money by creating “my favourite book” applications that they add to their facebook page or MySpace. eBay lets you buy and sell using 3rd party developer applications away from the site, such as iPHone and Facebook apps.

          That’s why this is interesting – they want Dean to make the applications, they don’t mind him making money from it, but he can’t be “aggressive”. Aggressive is poorly defined – as I mentioned, Dean only has a thousand or so followers so he’s hardly the worst of the bunch.

          The widget economy (API revenue to 3rd parties) is still going thru teething stage, so this sort of C&D is interesting and educational, no? 😛

  10. Looks like Twitter is just going after Australian companies as I think legally US IP seems to walk all over our legal system.

    http://www.smartcompany.com.au/internet/20090817-twitter-melbourne-it-order-usocial-to-be-shut-down.html

    If you are not US based we should not have to bend to their sudden changes in business plans….

    If you are an Australian company try and go after a US company that is infringing on your patent/trademark and it is likely you will be told that we cant inforce it…

    There always has been a disadvantage to Australian generated IP and our legal system doesnt seem to want to help.

    MacDonald’s Burgers or Ugg boots anyone…
    http://chowhound.chow.com/topics/407027
    http://www.artslaw.com.au/LegalInformation/Trademarks/04UggBoot.asp
    .-= David´s last blog ..Facebook befriends Friendfeed in buyout =-.

  11. I wanted to send you a quick note to bring you up to speed on the legal issues facing www.MyTwitterButler.com

    As most of you know on August 11th I received a “cease and desist” letter from Twitters lawyers stating I had 14 days to hand over the domain, destroy all copies of the source code and to cease selling the MyTwitterButler application forever.

    Basically they said the API was too powerful for end people to use directly and people should be using the Twitter web site if they wanted to follow people (I’m paraphrasing in my own words).

    I’ve had two conference calls with Twitters lawyers and got my own legal advice and whilst I was in agreement to change the domain name (but not giving it away!!, I was just going to do a redirection) I wasn’t going to stop using or selling the MyTwitterButler software.

    Basically all of you deserve the right to interact with Twitter in a way that brings value to the Twitter community.

    As such……

    I’m back baby, “bigger and badder” than before – www.MyTwitterButler.com is now www.MyPostButler.com feel free to tweet it on, lawyers suck !!

    The application is now called www.MyPostButler.com and as you can see it has a new kick butt function that allows you to “Bulk Unfollow Users”

    If you have any questions feel free to get in touch.

    Regards,
    Dean Collins
    www.MyPostButler.com

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