Brandjacking

Abstract: This Article explores how current federal trademark infringement and free speech law applies to “brandjacking” - the allegedly illegal use of trademarked brand names - on social network sites like Facebook and Twitter. When individuals use the trademarks of others without authorization in usernames, account names, and/or the content of these sites, it is unclear whether infringement law applies if that third party is not advertising or selling goods or services. Where the mark is being used in parody, satire, criticism, comparative advertising, news reporting, and other commentary on the social network site and there is no confusion about the source of this expression, this Article argues that courts are less likely to find infringement. The court may conclude the markholder cannot satisfy one or more threshold elements of an infringement claim because there is no “use in commerce” of the mark; the mark is not used in connection with goods, services, or commercial activities; and/or there is no commercial use or trademark use of the mark. Or the court may find this use of the mark is not likely to cause confusion, qualifies for a fair use defense, or is protected by the First Amendment right to freedom of expression. On the other hand, if the accused infringer is using the mark to impersonate the markholder and cause confusion about the source of expression on the social network site, some courts may find infringement even where the third party is not advertising or selling goods or services. Those courts may conclude this expressive use of the mark qualifies as an “information service” and trademark use of the mark. By prohibiting unauthorized uses of marks that cause this type of confusion, trademark infringement law can reduce consumer search costs and protect both consumers and markholders from various harms. Such restrictions on use of another’s mark may not violate the First Amendment if reasonable persons believe the third party’s false statements of identity and authorship. To balance trademark and free speech interests, this Article proposes that infringement law should apply to the unauthorized use of a mark on a social network site that is likely to cause confusion about the source of expression unrelated to the advertising or sale of goods or services, but only where (1) the mark is used to impersonate the markholder and falsely suggest the markholder is the author of the third party’s expression, (2) reasonable people believe the imposter’s false statements of identity and authorship, and (3) the content of the social network site page does not dispel the confusion regarding the source of the expression. If the third party is not advertising or selling any goods or services on the social network site and consumers are only confused about whether the markholder authorized this use of its mark or is affiliated with or sponsors the third party’s expression, this expressive use of the mark should be outside of the scope of the trademark infringement laws. Unauthorized use of a trademark is not equivalent to brandjacking.