Arizona State University Sues Facebook With Bogus Trademark Claim To Try To Stop COVID Parties Account

from the not-an-appropriate-use-of-trademark-guys dept

Let's start this one by noting that "COVID parties" are an incredibly dumb and insanely dangerous idea. A few people have suggested them as a way to expose a bunch of people to COVID-19 in the belief that if it's mostly young and healthy people, they can become immune by first suffering through having the disease, with a lower likelihood of dying. Of course, this leaves out the very real possibility of other permanent damage that getting COVID-19 might have and (much worse) the wider impact on other people -- including those who might catch COVID-19 from someone who got it at one of these "parties." It's also not at all clear how widespread the idea of COVID parties are. There have been reports of them, but most of them have been shown to be urban legends and hoaxes.

Whether or not COVID parties are actually real or not, some jackass decided to set up an Instagram account called "asu_covid.parties," supposedly to promote such parties among students of Arizona State University as they return to campus. The account (incorrectly and dangerously) claimed that COVID-19 is "a big fat hoax." Of course, if it were a hoax, why would you organize parties to infect people? Logic is not apparently a strong suit. Arizona State University appears to believe that the account was created by someone (or some people) in Russia to "sow confusion and conflict." And that may be true.


You can understand why the University might be upset about this and want to stop it. But, that shouldn't mean that the University gets to abuse the law to do so. Unfortunately, the University decided to sue Facebook (and the anonymous account holder) over the account, claiming... trademark infringement.

Because of the serious public health issues involved here, and pursuant to Fed. R. Civ. P. 65, ASU seeks a temporary restraining order and preliminary injunction to prohibit the “asu_covid.parties” account holder (i) from using the ASU Marks and the maroon and gold school colors trade dress as part of any account username, profile name, profile picture, and/or bio description, and (ii) from using the ASU Marks and the maroon and gold school colors trade dress in connection with the promotion of any parties, events, or other goods and services. ABOR also seeks relief against Facebook, Inc., the owner and operator of the Instagram platform and service, temporarily and preliminarily enjoining it from continuing to provide any services to the “asu_covid.parties” account holder as a means for infringing upon the ASU Marks and school colors trade dress.

As dumb and dangerous as the account may be that remains no excuse for abusing trademark law for this purpose. The use by the account is clearly not "in commerce" and certainly is not likely to create confusion. No moron in a hurry is going to think this is coming from an official ASU account. Indeed, the filings admit that the account itself (falsely) claims that it won a legal fight with ASU... which proves that it's separate from ASU:

In addition to the instances of infringement of the ASU Marks, the John Doe defendant has engaged in a series of offensive and false statements about ASU. The account has posted objectively false statements and information about ASU, including, for example, the following post in which it claims that the account owner has “won the battle in court” and that ASU has been ordered to pay its legal fees plus $500,000 in damages.... No such lawsuit or claim for damages exists.... If that were not enough, in several posts the owner of this account portrays ASU and its leadership as Nazis, referring to ASU’s President Crow as Fuhrer Crow and comparing ASU’s mask requirement to forcing Jews to wear a yellow Star of David...

While this is being used to argue tarnishment, it's difficult to see how that's a legit claim either. No one is believing these silly claims.

Furthermore, making the trademark claim against Facebook, rather than just the account holder seems particularly stupid. Now, it is true that trademark claims are a kind of loophole when it comes to Section 230. Intellectual property is exempted from 230. And while copyright has the DMCA safe harbors, trademark has no official safe harbor of that nature -- so, in theory, if you want to get around Section 230, trademark is one way to do so. But, in reality, it doesn't work that well because courts are still quick to recognize when someone is trying to blame a third party for actions of their users.

Here, ASU is claiming that when it complained to Instagram about the account over trademark claims, Instagram responded that it did not appear to violate ASU"s trademarks. That's correct. It does not violate ASU's trademarks. It may violate other Facebook/Instagram policies, but the company made the right call on the specific trademark complaint. But ASU claims this makes Facebook liable:

On August 12, 2020, undersigned counsel on behalf of ASU submitted a trademark infringement report using Instagram’s reporting tool and identifying the federally registered ASU Marks as being infringed by the “asu_covid.parties” account.... On August 14, 2020, Instagram responded that “the reported party appears to be using your trademark to refer to or comment on your goods and services” and that it would not take any action regarding this account.... Instagram’s response mischaracterized the account’s use of the ASU Marks because neither the account profile nor any of the referenced posts refer to or comment on any of ASU’s goods or services....

Of course, soon after the lawsuit was filed, Instagram did shut down the account. This was the right move because the account violated other policies that Instagram and Facebook have regarding COVID-19 disinformation -- but that's separate from a trademark claim.

While Facebook taking down the account may make most of the rest of this moot, we should be concerned about the fact that ASU filed this in the first place (or if it does somehow go forward, what happens). Imagine a ruling in favor of ASU here and how it could be abused to silence many different student groups or organizations criticizing a university (or just to pressure Facebook and other platforms to delete such groups and accounts).

I can completely understand why ASU wanted this account shut down. But it shouldn't abuse trademark law to do so.

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Filed Under: 1st amendment, covid parties, disinformation, free speech, russia, section 230, trademark
Companies: arizona state university, facebook


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  • identicon
    Anonymous Coward, 25 Aug 2020 @ 4:00pm

    Legal repercussions

    ASU should lose and trademarks it has and be forced to take a remidial course in trademark law before being allowed to file for new ones. They have shown that they have no problem abusing the trademark system to bully others.

    reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 25 Aug 2020 @ 4:56pm

    Both sides on this one

    "Mama always said, 'Stupid is as stupid does'".

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 25 Aug 2020 @ 5:07pm

    This could have been so easy...

    ASU: This account is using our name to promote incredibly dangerous and stupid events on your platform, it would be really good if you were to shut them down.

    Facebook: They aren't violating our rules.

    ASU: The next people we plan to talk to are the press, every last one we can get a hold of, and we'll make sure to point out how 'promoting events to intentionally catch and spread COVID' apparently doesn't violate your rules.

    Facebook: Actually you know what, it turns out that is a violation of our rules, and the account has been shut down.

    reply to this | link to this | view in chronology ]

  • icon
    Thad (profile), 25 Aug 2020 @ 9:29pm

    You know, this makes me feel a little better about staying the fuck away from downtown Tempe for the past three months.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 Aug 2020 @ 10:46pm

    "This idea that covid is only rampant in America compared to other countries is a hoax (that we just made up to fool idiots like you who choose to believe it [ha-ha])"

    People who harm themselves through their own stupid choices get no sympathy from me.

    reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 27 Aug 2020 @ 7:09am

      Re:

      "People who harm themselves through their own stupid choices get no sympathy from me."

      Would be nice if they didn't then go on and volunteer other unrelated people for a darwin award.

      You'd think that 170k dead people would be a bit rich for a hoax but that's the current US right-wing for you.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 27 Aug 2020 @ 8:48am

        'No-one I know has died, therefore it doesn't exist/matter.'

        There's a reason I've taken to always referring to them as a cult at this point, because between The Holy Profit/Prophets, Who Are Never Wrong and rejecting anything that might contradict the holy scripture/babbling as heresy they sure as hell act like one.

        reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 28 Aug 2020 @ 1:10am

          Re: 'No-one I know has died, therefore it doesn't exist/matter.'

          "There's a reason I've taken to always referring to them as a cult at this point...they sure as hell act like one."

          Sure enough. The GOP as a whole normalized science denial, in no small way abetted by the way many major corporations actively started sponsoring think tanks and marketing trolls to "explain away" inconvenient science about the effects of tobacco or the fallout of environmental damage since around the late '60's.

          That gradual erosion made for a significant proportion of the citizenry grow up to the concept of science being a "bad thing", hard fact being a matter of perspective, and the academic community as a whole somehow being a tool of some shady government conspiracy.
          The entire GOP just slid down into the status of a cult without a figurehead nutty enough to cater to their whims - until first GWB, then Trump started delivering simple messages of how to solve every problem - by providing a few easy scapegoats to blame for every wrong. And as usual in such emerging political opportunism there's never a shortage of people willing to go to any length to exacerbate the problem.

          That's now a thorny issue. Racism, scapegoating, science denial and religious hysteria have become key elements of a significant proportion of american voters.
          This generation and the next?
          Screwed.

          You can't just "deprogram" millions of cultists. Those people won't change for the better, because to do so will, by now, be to admit that their entire personality is linked to outright lies.

          If the entire US political system as a whole was compared to a swimming pool, it would be one where half of the people in it have been using it as a toilet, leaving anyone not stark raving mad to head for the ladders out of it in a hurry. It's a constitutional crisis where the politics are consistently so poisoned the system no longer works.

          And I think the US is going to have to wake up to that reality soon and rebuild that system from the ground up because it's not fixable by just changing the water, nor can you tell the incontinent assholes to get out of the pool and not participate any more. Not within the given rules.

          reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 26 Aug 2020 @ 2:05am

    From the “this website sucks cock” dept.

    reply to this | link to this | view in chronology ]

  • identicon
    Coffee U, 26 Aug 2020 @ 6:06am

    Covid Parties

    Until/Unless we've got herd immunity from Covid, all parties right now are Covid Parties. Regardless of what people call them.

    reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 27 Aug 2020 @ 7:13am

      Re: Covid Parties

      ...and to obtain that "herd immunity" we need to go through the logical statistical death toll of millions, in the US alone.

      I'm not sure how to say this...but it really isn't the US way to emerge stronger from a crisis which actually hurt them at home. If anything they appear to take away all the wrong lessons.

      reply to this | link to this | view in chronology ]

      • identicon
        Coffee U, 27 Aug 2020 @ 10:43am

        Re: Re: Covid Parties

        "...and to obtain that "herd immunity" we need to go through the logical statistical death toll of millions, in the US alone."

        Or wait until/unless there's a vaccine released.

        Or wait until it's determined that due to body's immunological responses that there's no long term sustainable immunity possible, and for forever onward, all parties will be covid parties.

        Taking the UK's initially (and then later reversed) stance is not the only way, and we don't even know that there will be long term immunological responses.

        This might end up being the new flu++ with yearly, or bi/tri yearly resurgences.

        reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 28 Aug 2020 @ 1:19am

          Re: Re: Re: Covid Parties

          "Taking the UK's initially (and then later reversed) stance is not the only way, and we don't even know that there will be long term immunological responses. "

          True enough, and given that the infection can also cause permanent damage, both herd immunity and the large-scale experiment of "immunization" parts of the US appears hell-bent on accomplishing the bill is going to be steep.

          "This might end up being the new flu++ with yearly, or bi/tri yearly resurgences."

          I really don't like it when the flu is used as a comparison. Coronavirus in humans is new - it's not something which the human race has evolved mechanisms to cope with through multiple massive die-offs of anyone still vulnerable to the worst and most obvious effects.

          I must say I'm none too keen on spending my golden years in a world where a significant proportion of the population regularly dies or is maimed in the process of evolutionary pressure forcefully adapting mankind to a new pandemic.

          reply to this | link to this | view in chronology ]

          • icon
            Coffee U (profile), 28 Aug 2020 @ 6:16am

            Re: Re: Re: Re: Covid Parties

            "I must say I'm none too keen on spending my golden years in a world where a significant proportion of the population regularly dies or is maimed in the process of evolutionary pressure forcefully adapting mankind to a new pandemic."

            Well, between your option listed, and that of society switching to distancing, face masks when indoors excepting home/family becoming the new social norm, I know that I'd rather choose the latter. Heck, after 10+ years of this, even the anti-maskers would adapt, and start fighting if it's later revealed that covid's no longer an issue and we don't need to be quite so stringent.

            Yes, a third option of vaccines with no/little side effects and long lasting immunity (or regular vaccine schedule) would be great. But we don't know we're getting that as an option.

            In the meantime, living the present as the future one wants, means accepting the current status. Masks are the new normal. Indoor crowding is to be avoided, and even outdoor crowding can't be too close up. All parties are Covid Parties, whether their in a college dorm or a family get together that's happened every year for over 50 years running.

            reply to this | link to this | view in chronology ]

  • icon
    tom (profile), 26 Aug 2020 @ 2:57pm

    Quick Internet search:
    ASU - Appalachian State University
    ASU - Alabama State university
    ASU - Arizona State University
    ASU - Angelo State University

    Could be others.

    All seem to use some version of yellow/gold as one of their school colors based on website visuals. Guessing that each has an exact Pantone color definition for their school colors.

    Seems the use of ASU isn't exactly unique in the college/university trade area.

    Wonder if Arizona State verified the colors used on the accounts in question were the trademarked colors or merely generic yellow/dark red shades? Assuming they actually did get trademarks on specific colors.

    reply to this | link to this | view in chronology ]

  • icon
    Tanner Andrews (profile), 27 Aug 2020 @ 6:18am

    There are quite a few schools, including high schools, which use ``garnet and gold'' as school colors. It would be hard to see the colors as a protectable trademark because they do not distinctively identify the origin of any goods or services.

    reply to this | link to this | view in chronology ]

  • identicon
    John, 17 Sep 2020 @ 9:55am

    The current situation has changed everything! I'm on distance learning now, and I can say that I miss college. Even though I can use different resources such as the Essayotime platform, to get some economics assignment help. By the way, I think that https://essayontime.com.au/economics-assignment-help is the best one in this field. I feel the lack of communication, and I hope to return to the usual lifestyle soon.

    reply to this | link to this | view in chronology ]


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