Not A Lame Lawsuit Involving Facebook

Is Facebook being a trademark bully, or is it really just trying to protect its intellectual property?

In March 2010, Facebook sent small scale parody website Lamebook (some of the stuff on there is really funny) a cease and desist letter.  Facebook had a problem with Lamebook’s name, mark, and look and feel of its website.  Lamebook did not fold under the weight of the demand, and instead filed a Complaint against Facebook, in a district court in Texas, for trademark infringement, hoping for a declaratory judgment to preempt the same type of lawsuit from being filed by Facebook against Lamebook.

As was expected, Facebook responded with a suit of its own, filed in federal court in San Jose, California.  One thing Facebook claims is that Lamebook does not get First Amendment protection based on its status as a parody; Facebook says that doesn’t “provide any critique or comment of Facebook itself.”

The court should look to the case of Bally v. Faber.  Faber called his website, “Bally Sucks.”  The website was dedicated to complaints about Bally’s health club business.  Bally, like Facebook, has strong marks.  A major change to the mark makes it not very similar, and Faber did not attempt to pass-off his site as Bally’s site (even stating that his site was “unauthorized”), a reasonably prudent user wouldn’t mistake Faber’s site for Bally’s official site, the goods were not related, so the fact that marketing channels overlap was irrelevant, Bally’s mark was used in context of consumer criticism (not used in domain name), Bally was not entering web design business and did not intend to operate an official anti-Bally’s site, and Faber was not operating a health club.  The court found no infringement by Faber.

Lamebook does not overtly attempt to pass off its site as Facebook’s site, but it also does not make an overwhelming effort to indicate that it is not affiliated with Facebook on its website.  Additionally, Lamebook does not make a major change to Facebook’s mark.  It incorporates a “thumbs down” picture on its mark, but uses the same color scheme, font, and general design as Facebook’s logo.  In all likelihood, a reasonably prudent user would not mistake Lamebook for Facebook’s official site, but one might think that it is a new site created by those behind Facebook.  It does not help Lamebook that it is in the same space (online) as Facebook, uses Facebook’s good (the Wall) as its conent, and uses part of Facebook’s name in its own website’s name.

While in Bally, it was clear that the parody was a critique of Bally itself, it is not so clear in the instant case.  Lamebook is not necessarily critiquing Facebook, but those who post ridiculous things using the service.

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