by Mike Masnick

Filed Under:
section 230, trademark

complexions, facebook

Can You Sue Facebook To Restore Your Falsely Taken Down Fan Page?

from the well,-you-can,-but-you-shouldn't-win dept

Eric Goldman has the details on an interesting trademark dispute involving Facebook. It involves two separate day spas, who both go by the name "Complexions," but in different regional areas, so there was no real problem in the past. But thanks to a global internet, things get trickier. One of the spas sent a takedown notice to Facebook claiming "copyright" infringement of the Facebook fan page of the other Complexions. As Goldman notes, the claim of copyright was almost certainly in error, as it probably meant trademark (though, we're seeing trademark holders exploit this confusion regularly these days, to pretend that the DMCA and its takedown process covers trademark too).

The Complexions who lost its fan page has gone to court to get a declaratory judgment that it didn't infringe against the other Complexions... and is seeking to have the court order Facebook to put the page back up. As Goldman points out, even if it makes sense for Facebook to put the page back up, the court almost certainly cannot legally mandate that, since Facebook is protected in taking down whatever content it wishes to take down:
The issue is so interesting because the DJ plaintiff's desired relief should be categorically unavailable. A court can't order a web service to restore an user's account/content for at least two independent reasons. First, such an order clearly violates the First Amendment-- the order would impermissibly circumscribe the service's freedom of speech and the press. Second, even if you don't want to get into the constitutional debate, IMO Congress resolved this issue in 47 USC 230(c)(2), which immunizes websites' "filtering" decisions. If Facebook takes down a fan page because it thinks the page is trademark infringing, 230(c)(2) says Facebook still has the full editorial discretion not to publish the page even if it later learns that the page wasn't trademark infringing at all.

A court *can* order the IP owner to stop sending takedown notices. See, e.g., Biosafe-Hawks, Design Furnishings, and Amaretto. My hope is that a web service would listen carefully to such orders in deciding if/how to remediate its prior responses to the takedown notices. My hope is that web services would also build in enough due process to their private adjudicatory processes so its users can fairly combat false takedown notices without needing judicial intervention at all. However, it remains fair game for the web service to make "bad" choices on both fronts, though we as consumers should draw our own conclusions about those who do.
Separately, Goldman points out that the suing Complexions is also claiming "false advertising," in noting that the Complexions who issued the takedown also sent friend/fan requests to its fans. He predicts that we'll start seeing more lawsuits over attempts to "poach" Facebook fans.

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  1. icon
    jamesbertini (profile), 2 Mar 2011 @ 8:38am

    We lost our Facebook page

    We are Denver Urban Homesteading, an indoor farmers' market in Denver, Colorado supporting small, local farmers. We use our Facebook page as our main means of communicating with our customers. Facebook disabled it two weeks ago due to a complaint by a family church in Pasadena, CA that has trademarked the phrase "urban homesteading." Of course, they have not trademarked "Denver Urban Homesteading" but that position does not impress Facebook which will not enable our page, and will not allow us to access the contact information for our 2200 customers.

    Trademark owner Dervaes Institute will not communicate with us - other than to have sent us a cease and desist letter one week AFTER they took down our page - and consequently we have no way to get back our own intellectual property (my postings and my photos) and our customer list due to the phony trademark claims of the church.

    Justice is denied us twice by the law: first by the erroneous issuance of a trademark for a common phrase ("urban homesteading" is even a subject heading in the Library of Congress) and second by not keeping up with technology by not having procedures to contest phony trademark takedowns.

    And Facebook practices corporate irresponsibility: the DCMA does not cover takedowns of trademarks but they nevertheless follow the DCMA copyright rules by immediately disabling accounts accused of trademark infringement but then they do not follow the DCMA rules for re-enabling the material after a counter notification (I tried this and they told me to bug off).

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