Arizona State University Sues Facebook With Bogus Trademark Claim To Try To Stop COVID Parties Account
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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 theasu_covid.parties account holder (i) from using the ASU Marks and the maroon and gold schoolcolors trade dress as part of any account username, profile name, profile picture, and/or biodescription, and (ii) from using the ASU Marks and the maroon and gold school colors trade dressin connection with the promotion of any parties, events, or other goods and services. ABOR alsoseeks 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 theasu_covid.parties account holder as a means for infringing upon the ASU Marks and schoolcolors 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 Doedefendant has engaged in a series of offensive and false statements about ASU. The accounthas 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 courtand that ASU has been ordered to pay its legal fees plus $500,000 in damages.... No such lawsuit or claim for damages exists.... If thatwere not enough, in several posts the owner of this account portrays ASU and its leadershipas Nazis, referring to ASU's President Crow as Fuhrer Crow and comparing ASU's maskrequirement 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 trademarkinfringement report using Instagram's reporting tool and identifying the federally registeredASU Marks as being infringed by the asu_covid.parties account.... On August 14, 2020, Instagram responded that the reported party appears to beusing your trademark to refer to or comment on your goods and services and that it wouldnot take any action regarding this account.... Instagram'sresponse mischaracterized the account's use of the ASU Marks because neither the accountprofile nor any of the referenced posts refer to or comment on any of ASU's goods orservices.... 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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posted at: 12:01am on 26-Aug-2020
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Activision Deletes And Replaces 'Call Of Duty' Trailer Worldwide Over 1 Second That Hurt China's Feelings
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While China-bashing is all the rage right now (much of it deserved given the country's abhorrent human rights practices), it's sort of amazing what a difference a year makes. While the current focus of ire towards the Chinese government seems focused on the COVID-19 pandemic and a few mobile dance apps, never mind the fully embedded nature of Chinese-manufactured technology in use every day in the West, late 2019 was all about China's translucent skin. Much of that had to do with China's inching towards a slow takeover of Hong Kong and how several corporate interests in the West reacted to it. Does anyone else remember when our discussion about China was dominated by stories dealing with Blizzard banning Hearthstone players for supporting Hong Kong and American professional sports leagues looking like cowards in the face of a huge economic market?Yeah, me neither. But with all that is going on the world and all of the criticism, deserved or otherwise, being lobbed at the Chinese government, it's worth pointing out that the problems of last year are still going on. And, while Google most recently took something of a stand against the aggression on Hong Kong specifically, other companies are still bowing to China's thin-skin in heavy-handed ways. The latest example of this is an admittedly relatively trivial attempt by Activision to kneel at the altar of Chinese historical censorship.The debut trailer for Call of Duty: Black Ops Cold War has been blocked in China, and subsequently edited everywhere else, after featuring around one second’s worth of footage from the Communist government’s crackdown on pro-democracy protesters in 1989. When the game was first announced last week, a trailer running for 2:02 was released to the world and hosted on the official Call of Duty and Xbox YouTube pages, along with major trailer sites like IGN and Gamespot.On August 21, however, the videos on Call of Duty and Xbox’s YouTube pages were replaced with a much shorter, 1:00 version. This isn’t an additional trailer, it’s a replacement, which we know because...the original 2:02 video we embedded in our own story is no longer working, having been marked as “private”. So here's the, ahem, tik-tok on this. Activision, which also owns Blizzard, releases a new trailer for a new Call of Duty game. That trailer includes a single second of an image from Chinese protests against the government from three decades ago. The Chinese government, true to form, flips the fuck out and bans the trailer entirely. One imagines there were also threats of banning the game entirely, but that is yet to be confirmed. Activision then, seeing the Chinese government go full carpet bomb over the trailer in its country, decides to try to out-carpet-bomb the carpet bomb by doing a delete/replace of the offending trailer worldwide.While we're talking about a mere video game trailer here, the implications aren't as insignificant as they might seem. Games are a subset of culture and commerce. While much of the discourse over how companies do business in China is overstated to say the least, what Activision did here is something different. Indeed, it could probably be best summarized as: Activision allowed the Chinese government to censor the company's art throughout the world.And, sinophobia aside, that is a very dangerous precedent to set. That it was an action taken on a trailer for a game called Call of Duty: Cold War, in fact, is probably proof that the universe is not without a sense of irony.
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posted at: 12:01am on 26-Aug-2020
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