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The Power and Pitfalls of Social Media Evidence in Trademark Infringement Cases

In this article we'll discuss a few recent cases that reflect how social media evidence can play an important role in establishing consumer confusion in trademark infringement lawsuits

As social media has become an essential tool for businesses trying to reach wider audiences and build brand recognition, it has also made way for an increase in trademark infringement cases, as individuals and companies attempt to profit from the goodwill and reputation of established brands.

In such cases, social media evidence can help to establish whether there is actual confusion among consumers, a crucial element in proving trademark infringement.

How is Social Media Evidence Used to Prove Trademark Infringement?

To establish trademark infringement, a plaintiff must prove that a defendant’s use of a trademark is “likely to cause confusion” with the plaintiff’s trademark under Title 15 of the U.S. Code, Section 1125(a)(1)(A).

Social media evidence can help establish actual confusion by demonstrating how consumers interact with the trademark in question.

But that is not where the usefulness of social media evidence stops in these kinds of cases.

In addition to user engagement on posts and profiles such as comments or 'likes', analytics data and other metrics from social media platforms can also be included as evidence to track how consumers are interacting with their content and whether there are any spikes or changes in user behavior when a competitor begins using a similar trademark. This data can also help demonstrate actual confusion among consumers.

4 Trademark Infringement Cases Where Social Media Content Was Used As Evidence

In the following four cases, plaintiffs have submitted social media posts to establish evidence of actual confusion to bolster their claims of trademark infringement.

1. Hermes International v. Rothschild

In Hermes International v. Rothschild, t (S.D.N.Y. Feb. 2, 2023), the luxury brand Hermès filed a trademark infringement action against the defendant who created and sold “MetaBirkin” nonfungible tokens (NFTs).

Hermès asserted that Rothschild’s NFTs infringed upon its famous Birkin handbags both in name and appearance. Hermès successfully defeated a summary judgment motion by introducing social media posts into evidence that allegedly reflected actual confusion from consumers, including posts that read:

“Finally an NFT my wife can get on board with! Would LOVE to get her this Birken [sic] for Christmas!”

“I need this Birkin for the wifey! Please whitelist me sir. #WAGMI #MetaBirkins”

“Birkin NFT is the future of fashion.”

Ultimately, the court ruled in favor of Hermes, finding Rothschild liable for trademark infringement. Rothschild was ordered to pay $133,000 in damages.

Additionally, the court issued a permanent injunction against Rothschild, prohibiting him from using the "Birkin" trademarks and requiring him to transfer relevant domain names, social media accounts, and NFTs to Hermes.

2. Great Western Air LLC v. Cirrus Design Corp.

In Great Western Air LLC v. Cirrus Design Corp., (D. Nev. Jan. 6, 2023), a personal airplane manufacturer, Cirrus Aircraft, asserted trademark infringement against a private charter jet company, Cirrus Aviation. Cirrus Aircraft sought at trial to establish actual confusion by pointing to various social media posts that showed images of Cirrus Aircraft planes that had been tagged with Cirrus Aircraft’s social media handle or had hashtags like #cirrusaviation.

3. S10 Entertainment & Media LLC v. Samsung Electronics Co. Ltd.

But social media evidence reflecting evidence of actual confusion cannot help your case if it is not properly authenticated. In S10 Entertainment & Media LLC v. Samsung Electronics Co. Ltd., (C.D. Cal. Feb. 14, 2023), Samsung successfully objected to the admission of social media evidence that the plaintiff sought to admit into evidence.

Specifically, Samsung successfully excluded what the court opinion describes as “21 unauthenticated social media posts and messages from Twitter and Instagram that S10 Entertainment purports indicate actual confusion” including “an unauthenticated YouTube video (and related screenshots).”

The court ruled that if the plaintiff intended to introduce social media posts from third parties to demonstrate that those third parties were confused, it could not authenticate those posts because it “cannot even demonstrate that these comments are real people.” The plaintiff’s use of screenshots and other failures to authenticate the social media evidence was very costly, and defendant Samsung prevailed at trial one month after the pre-trial evidentiary hearing.

4. Moroccanoil v. Marc Anthony Cosmetics

Moroccanoil, Inc. v. Marc Anthony Cosmetics, Inc., 57 F. Supp. 3d 1203 (C.D. Cal. 2014). was centered on trademark infringement and unfair competition of the word “Moroccanoil.”

Moroccanoil (the company) had registered the word with the United States Patent and Trademark Office (USPTO). Marc Anthony Cosmetics argued that the words “Moroccanoil” and “Moroccan oil” were used interchangeably by consumers as general terms, and Moroccanoil therefore couldn’t trademark it.

To support this argument, Marc Anthony submitted screenshots of a Facebook page that illustrated how customers used these words.

Unfortunately, the court ruled that the Facebook content could not be entered into evidence, since there was no way to prove that the screenshots were an exact copy of what existed on the live Facebook site. In other words, there was no way to authenticate the screenshots.

The Role of Social Media Evidence In Intellectual Property & Trademark Infringement Cases

Litigants in trademark and other intellectual property actions should both understand the treasure trove of key evidence social media feeds provide, while at the same time employing best practices to properly collect and authenticate this critical evidence source.

While social media evidence can be a powerful tool in trademark infringement cases, its admissibility hinges on proper authentication and reliability. Legal teams must ensure that this evidence is meticulously gathered and verified to be persuasive in court. As social media continues to evolve, its impact on legal proceedings, particularly in trademark law, is likely to grow, making it an essential consideration for businesses and legal practitioners alike.

Do you need to capture social media content for evidence? Learn how to capture complex, legally-admissible social media and web evidence with our guide. Download the Guide.

Additional Resources

  1. Collecting Online Evidence? Don’t Let Screenshots Sink Your Case
  2. Best Evidence Rule Requirements For Social Media Evidence
  3. 5 Social Media Investigation Tools That’ll Save You Time & Reduce Frustration

Editor's Note: A version of this blog post originally appeared on the X1 Social Discovery blog. It has been updated and expanded for Pagefreezer after acquiring X1 Social Discovery. 

John Patzakis
John Patzakis
As Founder and Executive Chairman of X1, John leads the company’s strategy and business development efforts. He has an extensive background and expertise in eDiscovery and corporate compliance, combining strong knowledge of both the law and the supporting technologies in those areas. Prior to joining X1, John served as a consultant providing strategic planning and product strategies to eDiscovery and compliance solution providers. John also spent nearly a decade at Guidance Software, Inc. (NASDAQ: GUID) where he held senior management positions, including Chief Strategy Officer, Vice Chairman, Chief Legal Officer and President and CEO. While at Guidance, John led the transition of the company from start-up to a major enterprise software firm and grew revenues from $5 million to $40 million during his tenure. Prior to joining Guidance, John spent eight years practicing law in the fields of commercial litigation and business transactions. John received an undergraduate degree from the University of Southern California and a JD from the Santa Clara University School of Law.

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