Facebook Friending = False Advertising? An Intriguing Case to Watch May Have the Answer
In a recent blog post, Internet Law professor and blogger Eric Goldman detailed a declaratory judgment action with an interesting twist – a false advertising claim for the defendant’s solicitations to plaintiff’s Facebook fans.
Plaintiff Complexions Inc., a New York day spa, is seeking a declaratory judgment that its name does not infringe on the trademark rights of defendant Complexions Day Spa and Wellness Center, located in California. According to plaintiff’s complaint, defendant sent a takedown notice to Facebook alleging that plaintiff’s business page violated its “copyright” (as noted by Goldman, the complaint says copyright when it likely refers to a trademark right). Facebook removed the page, prompting plaintiff to file the instant action seeking declaratory judgment and the restoration of its fan page. Although defendant owns a federal trademark registration for its COMPLEXIONS DAY SPA mark, plaintiff has been operating a successful salon under the Complexions name in the Albany area for over 20 years and will likely be able to assert its common law trademark rights to attain concurrent use.
The intriguing part of the complaint, in my opinion, is plaintiff’s false advertising cause of action. Plaintiff states that by January 2011 it had over 1,000 fans of its Facebook page, many of whom were previous or recurring customers of its facility. Plaintiff then alleges that before Facebook removed plaintiff’s business page on January 10th, defendant sent “friend requests” or “fan requests” to many of plaintiff’s Facebook fans. Presumably, and as alleged by plaintiff, defendant did so in order to capitalize on the spas’ identical names and to increase its own number of Facebook fans (defendant’s Facebook page currently has 58 friends). Plaintiff also alleges in its complaint that defendant sent these friend requests in order to falsify instances of actual confusion for a potential lawsuit between the parties, an interesting but inflammatory claim that defendant is sure to deny in its answer.
According to Goldman, this is the first lawsuit to battle over “poached” Facebook fans, and likely won’t be the last. It will be extremely interesting to see how the Northern District of New York treats these contentions, and how other businesses react to a decision.
