Last Thursday, the Arizona Board of Regents, on behalf of Arizona State University (ASU), filed a trademark infringement lawsuit against Facebook, Inc. and an unknown individual, the account holder of the “asu_covid.parties” Instagram handle. According to the complaint, ASU seeks redress for the unauthorized use of its registered trademarks and trade dress because the account used its logos and school colors in posts, which allegedly spread “dangerous misinformation about Covid-19 just as students are returning to ASU’s campuses to begin classes on August 20, 2020.”
The case implicates Facebook, the owner of the social media platform Instagram, because the company has the “ability to control and monitor the ‘asu_covid.parties’ account on its platform – and contrary to its own terms, policies and community guidelines – Facebook continues to provide its Instagram service to ‘asu_covid.parties,’ which in turn provides the means of infringement.”
In July, the unknown user created the Instagram account, accompanied by a post containing the ASU logo, school color trade dress, and the message, “No more social distancing. No more masks. It is time to party!” Subsequent messages included posts promoting a so-called “Hoax-19’ party,” and claims that the COVID-19 pandemic is “a big fat hoax.”
Posts also contained “objectively false statements and information about ASU,” in one instance claiming that the account holder had “‘won the battle’ in court and that ASU has been ordered to pay its legal fees plus $500,000 in damages.” According to the complaint, ASU’s initial investigation showed that the party or parties in control of the account “may be located in Russia and are using the account to sow confusion and conflict and to interfere with the health of the Arizona State University community by trying to worsen the pandemic here.”
In August, ASU notified Instagram of the alleged infringement and asked it to intervene. After multiple correspondences, and despite offering Instagram “specific examples of the infringement of the ASU Marks and violations of Instagram’s own terms of use and community guidelines,” Instagram responded that it would not remove the account or otherwise act.
The instant action argues that the “unauthorized use of ASU’s trademarks and trade dress not only harms ASU, but if not enjoined is also likely to endanger the health of the university community.” The plaintiff notes that there is already one instance of “actual confusion regarding ASU’s affiliation with this Instagram account,” pointing to the response from a perplexed and outraged alumnus who threatened to stop contributing to the school after reading account posts.
The five-count complaint makes a trademark infringement and dilution claim, a false designation of origin and false advertising claim, and a state law unfair competition claim against the defendant account holder. ASU also seeks to hold Facebook accountable for contributory infringement. The complaint demands redress including declaratory relief, an injunction preventing the further use of its trademarks and trade dress, and damages.
ASU is represented by Bacal & Garrison Law Group.
