By: Mark R. Malek
You may recall a while ago that I posted an article about how Facebook was suing Faceporn for trademark infringement. At the time that I wrote that article, Faceporn was taken down. I believe that the Faceporn that was the subject of that article, however, was the .com version.
This case is about a Norwegian site called Faceporn. To tell you the truth, I’m not even sure if they are the same site, but I’m sure they are peddling the same stuff. I’ll give you three guesses about the content! Be that as it may, according to this CNET article, the Court in California indicated that Facebook has no case against Faceporn because there was no evidence submitted that Faceporn has corrupted anyone in California with its product. Really?
I suppose I am a bit surprised that Facebook was not successful this time. As you know, Facebook is notorious for a little bit of over-enforcing its trademark rights. For example, we know that Facebook as gone after all sorts of websites that use either “Face” or “Book” in anything that even remotely resembles social networking. I remember them going after “Lamebook” which they settled (see this article) as well as “Shagbook” (see this article), the “Facebook Of Sex” (see this article) , “FriendFinder” (see this article) and, of course, my all time favorite, “Teachbook” (see this article).
I understand that there is a desire to protect the brand, but isn’t Facebook a victim of its own success? Would anyone be trying to play off the name if it wasn’t successful? Of course not. I am a bit frustrated at the notion of companies thinking that they own words, but at the same time, I am somewhat surprised that the Judge in this case did not believe that there was any damage to the Facebook trademark. It seems as though there was at least a potential claim for trademark dilution here.
This is the perfect example, however, of the ultimate litigation tactic – spend the opponent into the ground. As we all know from the recent IPO, although it did not go as well as planned, Facebook still has a ton of money, and access to the resources to make anyone’s life a living hell. Don’t kid yourself about the price of the stock being in the low $30’s after being initially offered at $38. I think they are not going to have any trouble paying their attorney bills, and I think the attorneys on these cases are not going to have much trouble paying for college tuition for their kids.