Arizona State University Sues Facebook With Bogus Trademark Claim To Try To Stop COVID Parties Account

from the not-an-appropriate-use-of-trademark-guys dept

Let's start this one by noting that "COVID parties" are an incredibly dumb and insanely dangerous idea. A few people have suggested them as a way to expose a bunch of people to COVID-19 in the belief that if it's mostly young and healthy people, they can become immune by first suffering through having the disease, with a lower likelihood of dying. Of course, this leaves out the very real possibility of other permanent damage that getting COVID-19 might have and (much worse) the wider impact on other people -- including those who might catch COVID-19 from someone who got it at one of these "parties." It's also not at all clear how widespread the idea of COVID parties are. There have been reports of them, but most of them have been shown to be urban legends and hoaxes.

Whether or not COVID parties are actually real or not, some jackass decided to set up an Instagram account called "asu_covid.parties," supposedly to promote such parties among students of Arizona State University as they return to campus. The account (incorrectly and dangerously) claimed that COVID-19 is "a big fat hoax." Of course, if it were a hoax, why would you organize parties to infect people? Logic is not apparently a strong suit. Arizona State University appears to believe that the account was created by someone (or some people) in Russia to "sow confusion and conflict." And that may be true.

You can understand why the University might be upset about this and want to stop it. But, that shouldn't mean that the University gets to abuse the law to do so. Unfortunately, the University decided to sue Facebook (and the anonymous account holder) over the account, claiming... trademark infringement.

Because of the serious public health issues involved here, and pursuant to Fed. R. Civ. P. 65, ASU seeks a temporary restraining order and preliminary injunction to prohibit the “asu_covid.parties” account holder (i) from using the ASU Marks and the maroon and gold school colors trade dress as part of any account username, profile name, profile picture, and/or bio description, and (ii) from using the ASU Marks and the maroon and gold school colors trade dress in connection with the promotion of any parties, events, or other goods and services. ABOR also seeks relief against Facebook, Inc., the owner and operator of the Instagram platform and service, temporarily and preliminarily enjoining it from continuing to provide any services to the “asu_covid.parties” account holder as a means for infringing upon the ASU Marks and school colors trade dress.

As dumb and dangerous as the account may be that remains no excuse for abusing trademark law for this purpose. The use by the account is clearly not "in commerce" and certainly is not likely to create confusion. No moron in a hurry is going to think this is coming from an official ASU account. Indeed, the filings admit that the account itself (falsely) claims that it won a legal fight with ASU... which proves that it's separate from ASU:

In addition to the instances of infringement of the ASU Marks, the John Doe defendant has engaged in a series of offensive and false statements about ASU. The account has posted objectively false statements and information about ASU, including, for example, the following post in which it claims that the account owner has “won the battle in court” and that ASU has been ordered to pay its legal fees plus $500,000 in damages.... No such lawsuit or claim for damages exists.... If that were not enough, in several posts the owner of this account portrays ASU and its leadership as Nazis, referring to ASU’s President Crow as Fuhrer Crow and comparing ASU’s mask requirement to forcing Jews to wear a yellow Star of David...

While this is being used to argue tarnishment, it's difficult to see how that's a legit claim either. No one is believing these silly claims.

Furthermore, making the trademark claim against Facebook, rather than just the account holder seems particularly stupid. Now, it is true that trademark claims are a kind of loophole when it comes to Section 230. Intellectual property is exempted from 230. And while copyright has the DMCA safe harbors, trademark has no official safe harbor of that nature -- so, in theory, if you want to get around Section 230, trademark is one way to do so. But, in reality, it doesn't work that well because courts are still quick to recognize when someone is trying to blame a third party for actions of their users.

Here, ASU is claiming that when it complained to Instagram about the account over trademark claims, Instagram responded that it did not appear to violate ASU"s trademarks. That's correct. It does not violate ASU's trademarks. It may violate other Facebook/Instagram policies, but the company made the right call on the specific trademark complaint. But ASU claims this makes Facebook liable:

On August 12, 2020, undersigned counsel on behalf of ASU submitted a trademark infringement report using Instagram’s reporting tool and identifying the federally registered ASU Marks as being infringed by the “asu_covid.parties” account.... On August 14, 2020, Instagram responded that “the reported party appears to be using your trademark to refer to or comment on your goods and services” and that it would not take any action regarding this account.... Instagram’s response mischaracterized the account’s use of the ASU Marks because neither the account profile nor any of the referenced posts refer to or comment on any of ASU’s goods or services....

Of course, soon after the lawsuit was filed, Instagram did shut down the account. This was the right move because the account violated other policies that Instagram and Facebook have regarding COVID-19 disinformation -- but that's separate from a trademark claim.

While Facebook taking down the account may make most of the rest of this moot, we should be concerned about the fact that ASU filed this in the first place (or if it does somehow go forward, what happens). Imagine a ruling in favor of ASU here and how it could be abused to silence many different student groups or organizations criticizing a university (or just to pressure Facebook and other platforms to delete such groups and accounts).

I can completely understand why ASU wanted this account shut down. But it shouldn't abuse trademark law to do so.

Filed Under: 1st amendment, covid parties, disinformation, free speech, russia, section 230, trademark
Companies: arizona state university, facebook