Lamebook, LLC operates a website, www.lamebook.com, at which people can submit amusing (or merely “lame”) messages and photos appearing on facebook.com – its tag line is “the funniest and lamest of facebook.” (Warning: some of the content is funny or lame mainly because it is off-color.) The editors screen the submissions and remove identifying information before displaying them on the site in various categories (such as “TypOHs”), and make revenue selling advertising space (as of this writing, the site had an Alexa® U.S. traffic ranking of 1,302, and ads for AUTOZONE and well-known car manufacturers were prominently featured). Imagine a business analogous to “America’s Funniest Home Videos,” except with your Facebook “friends” choosing which of your pictures, videos and writings to submit to the show.
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Following months of cease and desist letters and on-again, off-again settlement discussions, Lamebook recently filed suit (PDF) in federal district court in the Western District of Texas for a declaration of non-infringement and non-dilution. Not to be outdone, Facebook responded with an infringement and dilution suit in the Northern District of California.
Aside from the obviously derivative name, Facebook has other complaints about Lamebook’s functionality and trade dress: Lamebook uses a logo that is similar to Facebook’s (although having recently added a thumbs-down icon before the word), and offers “like this” and other features similar to Facebook functions. Facebook goes so far as to call the services on Lamebook’s site “the same as and/or related to the services provided by Facebook” (the former part of that characterization being a bit of a stretch). Lamebook responds that the mimicry of the name, logo and functionality are all part of the parody.
Lamebook faces at least two obstacles in establishing its parody defense. First, as discussed in this prior blog entry discussing the marks CHARBUCKS, CHEWY VUITON, and THE SOUTH BUTT, a mark does not fit into the statutory definition of parody unless it is used “other than as a designation of source for the person’s own goods or services.” 15 U.S.C. Section 1125(c)(3)(A). Since it fails this requirement, Lamebook’s service mark will be subject to the far murkier (and sometimes contradictory) standards articulated in prior cases dealing with parody and satire. There is an excellent discussion of these decisions in Anthony Fletcher’s recent article in The Trademark Reporter, titled “The Product with the Parody Trademark: What’s Wrong with CHEWY VUITON?” (INTA members can link to the article here.)
Second, in order to qualify as a parody, the mark must be used in order to target the subject mark in some fashion – not to merely use the mark as a “hook” for a parody about something else entirely. By analogy, under the copyright fair use doctrine (as discussed in this prior blog entry), one cannot change the lyrics to a copyrighted musical work to contain a political message unrelated to the song lyrics themselves, and then claim the work is parodic. Along these lines, a Facebook cease and desist letter attached to Lamebook’s complaint focuses on the case of Dr. Seuss Enterprises LP v. Penguin Books USA Inc., 42 USPQ2d 1184 (9th Cir. 1997), in which a book about the OJ Simpson case called The Cat NOT in the Hat! was found to be non-parodic, since it did not target Dr. Suess’ work in any way but merely used its imitation of the author’s title and style “to get attention” while commenting about something else entirely.
One might question whether this dispute is really analogous to the Dr. Seuss case. Commenting about the funny, disturbing or lame material on Facebook would seem far closer to commenting about Facebook itself, as opposed to using an author’s title and rhyming format to make a point about a criminal trial. How does one differentiate between commenting on the ubiquitous social medium that is Facebook, versus commenting on the content that appears on the medium?
Given that both sides reference lengthy prior discussions, the most likely outcome appears to be some form of settlement between the parties (perhaps involving a very prominent disclaimer). If the case progresses, however, it will be very interesting to see how the parody defense plays out.
It will also be interesting to see if Facebook raises – perhaps in the course of a dilution by tarnishing argument—privacy issues that are not addressed in either complaint. While YouTube videos are posted for the world to see, much Facebook content is available only to selected “friends” to see (even if those friends might number in the hundreds or thousands); neither the friend submitting the information nor Lamebook has permission to publish the content. While Lamebook obscures names and other identifying information, “scrambles” faces in photos and removes postings on request, some of these postings and photos might well be recognizable to people who know the author or subject before they are taken down. Might some people become more reluctant to post on Facebook as a result? More to the point of a dilution claim, might they form a negative impression of the Facebook brand?