The Twitter Saga – Intellectual property enforcement struggles following Musk takeover

Brands left vulnerable to exploitation and impersonation after reports highlight the lengthy response times and low takedown notices success rates on Twitter

We have all seen and read about major changes Twitter has undergone since Elon Musk took over the company. After starting his first day as CEO in style by bringing a sink inside Twitter’s HQ¹⁾, his main focus has been to increase the company’s revenue and to reinstating some more of the so-called “free speech” approach²⁾, which had started to fade away since 2016 in favour of a more “politically correct” and some might say fairer approach to the platform.

As a result, the company has had its workforce cut significantly, along with several changes to the platform’s policies and functioning, some of which quickly backfired. The most notable example was the introduction of the “blue mark”, which used to be reserved only for authentic brands, “celebrities” and influential people (CEOs, politicians etc.), was then available to all “Twitter blue” subscribers for a mere 8 USD/month. This plan was quickly cancelled following the (ab)use of the verified blue mark in a major wave of impersonation accounts popping up acting as  some of the world’s famous brands³⁾.

We only need to look at the Eli Lily and Co. impersonation example to see the devastating effects such attacks can have on a brand. In this particular case, an account impersonating the pharmaceutical company — complete with a purchased blue check mark — posted, “We are excited to announce insulin is free now.”  Eli Lilly asked Twitter to take it down, but the tweet remained up for hours, because the platform’s staff was stretched thin due to recent layoffs and resignations. The tweet garnered hundreds of retweets and thousands of likes, and Eli Lilly’s stock soon took a dive.⁵⁾

Alas, this was just the start of Twitter’s problems with intellectual property infringement. Impersonation was just the tip of the iceberg and the changes that Musk implemented only served as a catalyst for the severe inefficiency that was witnessed in relation to intellectual property enforcement over these past months.

We at BRANDIT, along with multiple other firms in the IP community, have indeed observed the same worrisome pattern when it comes to Twitter’s abuse and enforcement process and have struggled with implementing some of our usual enforcement tactics. To give just one example, our takedown notices, (trademark, copyright or alike) have simply been ignored, or in the best cases it took more than two months to receive an answer⁴⁾. This is even more frustrating as currently there is (i) no way to follow up on a takedown request, (ii) re-filing is futile, as it will simply update the original report with no results, and (iii) there is no human point of contact, not even for enforcement agencies. As such, brand owners and enforcement firms alike, are very much at the mercy of Twitter and its inefficiencies.

Consequently, the platform has become a “safe haven” for those who wish to abuse the intellectual property rights of others, and Twitter appears to have been suffering heavily as a consequence. Understandably, brands are now shifting towards other platforms for advertising purposes⁵⁾, thereby leading to a substantial loss in ad revenues. In addition, a recent lawsuit for USD 228.9 million was filed by a photography agency for Twitter’s alleged failure to remove copyrighted images after a whopping 6.700 DMCA requests⁶⁾.

It is therefore imperative, and in their best interest, that Twitter takes these concerns seriously and implements measures to better enforce intellectual property rights. Until then, it will remain a challenge to effectively tackle infringement on the platform in a timely manner. Nonetheless, it is exactly in this critical and uncertain period that enforcement agencies, like ourselves, need to be creative and find new ways to tackle infringers on the platform, for instance by using other tools at our disposal in potentially rather more unorthodox ways.

¹⁾ “Let that sink in!” See https://twitter.com/elonmusk/status/1585341984679469056

²⁾ See https://twitter.com/elonmusk/status/1623014136258117633?cxt=HHwWgoDSkcCwjYYtAAAA

³⁾ For a deeper dive on this topic see https://www.nytimes.com/2022/11/11/technology/twitter-blue-fake-accounts.html

⁴⁾ See https://www.worldtrademarkreview.com/article/unreliable-and-inefficient-twitter-ip-enforcement-falters-under-elon-musk-ownership?utm_source=E%E2%80%A6

⁵⁾ See https://www.npr.org/2022/11/25/1139180002/twitter-loses-50-top-advertisers-elon-musk

⁶⁾ See https://petapixel.com/2023/01/12/photo-agency-sues-twitter-for-228-9-million-over-copyright-infringement/

Author: Matteo Socci, Junior IP Counsel, BRANDIT