Tuesday, September 14, 2021

student social media use of school colors/logo not plausibly confusing

Arizona Board of Regents v. Doe, 2021 WL 3684116, No. CV-20-01638-PHX-DWL (D. Ariz. Aug. 18, 2021)

Doe, a real asshole (“deeply unsympathetic,” to use the court’s terms), advertised “ASU Covid Parties” on a similarly-named Instagram account and spewed a lot of bile as well as, in its first post, using ASU’s colors. The Board sued Doe for trademark infringement and related claims; Doe defaulted. Nonetheless, the court—correctly—refused to allow the Board to expand trademark and false advertising law to this conduct. The only evidence of actual confusion was a tweet: “#ASU having COVID parties and claiming it’s a hoax? I am stopping my alumni [membership] and removing my alumni sticker from my car and sending back my ASU alumni plate. I am embarrassed to be associated with thus [sic] ignorant behavior.”

Interestingly, Instagram allegedly refused a TM takedown request because “the reported party appears to be using your trademark to refer to or comment on your goods and services,” despite persistence by ASU’s outside counsel.  However, when the Board sued and moved for a TRO, Facebook agreed to disable the “asu_covid.parties” account and prevent the accountholder from creating new accounts, so the Board agreed to dismiss it as a defendant.

All of ASU’s claims required likely confusion or deception. That just wouldn’t happen to a reasonably prudent consumer. Only one post, the first, used ASU’s distinctive maroon and gold colors and ASU’s logo, and the surrounding context would prevent likely confusion. The accountholder posted the first two comments in the thread, the second of which was: “Those of you coming back to Phoenix. We about to get fucking lit.” “Although it is not uncommon for universities to attempt to appeal to students by imitating their vernacular, no university would drop the f-bomb in an official party invitation,” and a reasonable consumer would not have thought ASU was inviting them to get drunk. “Many of the subsequent messages from the ‘asu_covid.parties’ account affirmatively criticized—often in profane and vulgar terms—ASU’s leadership and official policies. … Many things can be said about these offensive and outrageous statements, but it is not plausible (to put it mildly) that a reasonably prudent consumer would believe ASU was the source or origin of them.”

Although the one tweet called out “#ASU,” it wasn’t clear from the “haphazardly worded tweet” whether this individual was actually confused or simply disgusted that ASU students were sponsoring COVID parties. Even assuming that 0.0002% of the alumni base believed that the profanity-laden posts were actually coming from ASU, that didn’t show confusion. “Tellingly, the comments to the posts suggest that readers believed the ‘asu_covid.parties’ account belonged to a student or group of students, not the university.” And Doe “expressly identified himself as a community advisor (i.e., student) and railed against ASU’s administration and official policies.”

Even if other factors like strength of the mark and similarity of marketing channels favored the Board, “the remaining Sleekcraft factors are unimportant” in a case, such as this one, where “no rational trier of fact could find that a reasonably prudent consumer...would likely be confused.”

What about initial interest confusion? It didn’t apply because even the initial post using maroon and gold  “was too crude and profane to create initial confusion as to its source and origin.” But, “[m]ore broadly, it cannot be the case that every social media post written by a college student that happens to use the school’s colors and/or logo in the post, and identifies the school’s location as the location of the poster, creates initial interest confusion and qualifies as an actionable trademark violation.”

State trademark dilution: the court, somewhat disappointingly, declined to exercise jurisdiction over the claim rather than resolving it.

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