Thursday, December 20, 2007

Facebook fraud

Nine West Development Corp. v. Does 1-10, filed Aug. 24, 2007 (S.D.N.Y.)

I held on to this complaint after Susan Scafidi posted it, because the facts are so fascinating (in a tawdry way). Essentially: The Does feigned a Nine West foot model search on Facebook, soliciting women to join their groups and submit pictures of their faces, their bodies, and their toes.

The Does used email addresses such as ninewest.audition at gmail (which should have been a signal for the wary – but not everyone is wary). About 400 people joined the first fraudulent group by July 2007; Nine West got Facebook to send the group members a fraud alert when it discovered the group’s existence. (The complaint says Facebook deleted the group in June 2007, but I think there’s some timeline error because that comes after the July events alleged.)

In August 2007, another fake Nine West audition group popped up, garnering about 226 members by mid-month. Facebook’s legal counsel agreed that, because of the public safety concerns involved, Facebook would provide individual notification about the reason for deleting the group, though it usually doesn’t explain such deletions. But Facebook didn’t reveal information about the creators of the groups.

Nine West sued for trademark infringement, false designation of origin, federal and state dilution by tarnishment, and state-law deceptive trade practices/false advertising.

The obvious problem is whether any of these causes of action can apply if the deceptive Does were operating only for their own perverted gratification, rather than for commercial purposes. I’m willing to accept that pretending to offer services in the ordinary market – here, the market for modeling services – ought to count under these (hopefully unique) facts. But bad conduct makes bad law; using Nine West’s name in a noncommercial context should not, as a rule, subject the user to the risk of trademark etc. liability. And that’s so even if the noncommercial context is highly objectionable – e.g., the L.L. Bean sex catalog case.

Of course, as with other incidents, the point of filing the suit is probably to get Facebook – not a named defendant – to hand over identifying information. Whether the defendants could ultimately be held liable to Nine West (I think the Does obviously have committed torts against any women who sent in pictures or contact information) is in many ways irrelevant as a practical matter.

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