Courts now take notice of the ways in which social networking sites are used for marketing, advertising, and communication purposes, and how this usage impacts intellectual property rights. From impeding or taking advantage of the First Amendment right of anonymous speech as it relates to the Internet to other issues involving intellectual property rights, there are several recent cases that illustrate trademark infringement and unfair competition as they occurred in a social media context.

A Case Illustrating Unfair Competition and Trademark Infringement

In Curtis James Jackson, p/k/a 50 Cent v. Grupo Industrial Hotelero, S.A., 2009 U.S. Dist. LEXIS 116770 (S.D. Fla. Apr. 28, 2009), the plaintiff, 50 Cent took action against the defendant, Grupo Industrial Hotelero, S.A., for common law unfair competition and trademark infringement. The defendant used the plaintiff’s likeness and the G-Unit mark to promote and draw attention to the Coco Bongo nightclub without regard to the plaintiff’s trademark rights and the right to control and direct the use of his image and likeness. The advertisement was seen on the defendant’s official Internet website, as well as on a video distributed via youtube.com and google.com. The court considered the wide distribution of the video and advertisements via the social networking sites in its calculation of damages, and summarized its ruling: “[t]he presence and distribution of the Coco Bongo nightclub website on the Internet is extensive and sophisticated through both its appearance on various search engines and its having been directly linked to numerous other websites, including travel-oriented websites and social networking sites.”

In Independent Newspapers, Inc. v. Brodie, 407 Md. 415 (Ct. App. Md. 2009), a court was challenged to answer the question as to the process by which a claimant could discover the identifying information about anonymous Internet posters. The court examined First Amendment protection of the right of an individual to speak anonymously. However, the court explained that the anonymity of speech may be limited by defamation considerations. After reviewing the standards employed by several different courts, the court employed a balancing test weighing a speaker’s right to anonymous Internet speech against the plaintiff’s right to seek judicial redress for defamatory remarks.

In the trademark infringement case, Minn. Pub. Radio v. Va. Beach Educ. Broad. Found., Inc., 519 F. Supp. 2d 970 (D. Minn. 2007), the court considered the activity of the defendant on its MySpace page to determine if it would be subject to personal jurisdiction in Minnesota. The court used the Zippo sliding scale test to determine if the nature and quality of a defendant’s presence on the Internet establishes minimum contacts with the forum state. The court found that the defendant’s presence on the Internet fell in the middle of the Zippo sliding scale since visitors to the defendant’s MySpace page could listen to streaming live audio, post comments, and subscribe to the defendant’s blog. However, the evidence did not disclose intent on the part of the defendant to target its services to Minnesota residents. Even acquiring friends on MySpace from Minnesota was found not to be an active solicitation of those friends. Therefore the court found that it lacked personal jurisdiction over the defendant.

In Conclusion

The courts will continue to consider the manners in which intellectual property rights should be upheld in social media and social networking sites. As more avenues for the distribution of intellectual property are created, Congress and the courts will likely continue to protect inventors, artists, and innovators.

For more information, please visit our trademark service page.

Klemchuk LLP is an Intellectual Property (IP), Technology, Internet, and Business law firm located in Dallas, TX.  The firm offers comprehensive legal services including litigation and enforcement of all forms of IP as well as registration and licensing of patents, trademarks, trade dress, and copyrights.  The firm also provides a wide range of technology, Internet, e-commerce, and business services including business planning, formation, and financing, mergers and acquisitions, business litigation, data privacy, and domain name dispute resolution.  Additional information about the IP law firm and its IP law attorneys may be found at www.klemchuk.com.

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