Trademark Infringement or Parody?

Asked over 3 years ago - San Jose, CA

I have a site lets say call it facebookidiots.com (no nothing is up on there). The site is basically about how people are idiots on facebook and allows them to upload stuff onto facebook utilizing the developer platform as an app to make their profile goofy. Completely complies with Facebook's App policy. Also the site would have news stories about stupid people on facebook (like the criminal who uploaded his picture to facebook).

Would this be trademark infringement or could I claim successfully parody?

Attorney answers (4)

  1. Daniel Nathan Ballard

    Contributor Level 20

    4

    Lawyers agree

    Answered . The issue is whether your use of FACEBOOK [or whatever the real trademark is] would infringe the trademark rights already developed in that mark.

    The rule is that's lawful to use another's trademark in order to name the company that uses the mark or the product branded by that mark. Gripe sites are examples [see http://webgripesites.com ] as are sites such as peopleofwalmart.com .

    The infringement defense of "parody" is NOT the way to think about such uses. The applicable concept is that you are making a "nominative" or "referential" use of the mark. Such use, if it is indeed nominative, is not an infringement at all. In short, if you use another's mark in a nominative sense then you don't need a "defense" to an infringement claim [which is your burden to prove] because such use is simply not an infringement.

    However, before you begin using anyone's already-existing mark it's necessary to discuss the matter with a trademark attorney. The devil is in the details and only after a thorough review of your site can anyone pass on the question of whether your use is nominative or not.

    Good luck. And do not disclose the real trademark that you want to use in any public forum such as this one.

    The above is general information ONLY and is not legal advice, does not form an attorney-client relationship, and... more
  2. Neil Alan Wehneman

    Contributor Level 11

    1

    Lawyer agrees

    Answered . As usual, Attorney Ballard has given excellent advice re: Nominative Fair Use for trademarks.

    I'll add that when you are working within an ecosystem like Facebook (or the iTunes App Store or whatever), you have to play by their rules, aka the Terms of Service.

    Their rules almost always include "we can take down anything you post if we don't like it."

    You'll want to review these rules (likely with an IP attorney) to determine how likely it is that your work will be taken down, regardless of whether it is legal generally.

    Remember, there is the generally applicable trademark law (which has been discussed), then there is the "contract" you agreed to by signing up as a Facebook (or whatever) developer.

    - Neil Wehneman

    The standard disclaimers apply. These are general statements of law, and not legal advice, because I do not have... more
  3. Mona R Conway

    Contributor Level 11

    1

    Lawyer agrees

    Answered . This has already been done, I believe. And, there have been serious consequences. Refer to the blog link attached.

  4. Maurice N Ross

    Pro

    Contributor Level 20

    1

    Lawyer agrees

    Answered . This is not parody. You might get away with asserting that this is a nominative use (as Mr. Ballard says), although I question this. But you will likely have a major problem if this goes forward. Facebook is a valid trademark. The facebook owners are aggressive in asserting their IP rights--as they should be. Your transformation of it into "facebook idiots" has the potential to cause substantial dilution to this legitimate trademark. You certainly are free under the first amendment to criticize facebook, but the first amendment does not allow you to alter the trademark in a disparaging and (i believe) misleading manner. And that is what you have done here.

    If you want to publish critical commentary on facebook--be my guest. But the owners of facebook might have a legitimate argument that your criticisms are deficient factually and have a tendency to dilute the value of their trademark rights. I think the facebook folks--for whom I have no great admiration or economic attachment--would have a valid argument here. Why put yourself in this precarious legal position when there are much more productive and intellectually defensible ways to criticize facebook.

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