Wednesday, November 25, 2009
Trademark infringement law may apply to the unauthorized use of trademarks to impersonate markholders on social network sites and elsewhere. Where “brandjacking” on social networks causes confusion about the source of information, that expression may be infringing even where the imposter is not creating confusion about the source or quality of commercial products for sale. Commercial use of the mark is not explicitly required for infringement under the Lanham Act, and some courts apply the federal infringement statutes in cases involving unauthorized use of marks in noncommercial speech. If a third party uses another’s mark to falsely claim to be the markholder and indicates that the markholder is the author of expression written by that imposter, courts may find infringement if the public is confused about the source of that third party’s “information services” and believes and relies on that false statement of identity. Of course, just because a markholder has a cause of action does not mean it should file suit against an individual who uses its mark in this way.
By prohibiting unauthorized uses of trademarks that cause confusion regarding the source of information or advertising, trademark law can reduce consumer search costs. Moreover, such restrictions on use of another’s mark will not violate the First Amendment if reasonable persons believe the third party’s false statement of identity and authorship. This is not anonymous or pseudonymous speech protected by the First Amendment; it is a false statement of fact. Yet courts will harm free speech values if they apply the affiliation/sponsorship confusion doctrine to unauthorized uses of a mark in expression of information or ideas. Courts should limit the scope of trademark rights by requiring source-confusion in infringement cases involving expression.
Download the paper from SSRN at the link.