Watch out for social media influencers! – Lexology

In Petunia Products, Inc. v Rodan & Fields, LLC and Molly Sims, the United States District Court for the Central District of California ruled that a social media influencer – a person “believed to have the power to influence the purchasing decisions of others” – could be sued for infringement direct branding related to the products that the influencer approved.

In this case, the plaintiff, a cosmetics company, owned the BROWBOOST® registered trademark, which she used in connection with her eyebrow product. Defendant Rodan & Fields (“R&F”), a competitor of the plaintiff, marketed its own eyebrow product called “Brow Defining Boost”. The claimant claimed that the R&F product infringed its brand and that R&F’s promotion of its product on social media with the hashtag #BROWBOOST diluted the claimant’s social media presence. The plaintiff also alleged that a social media blog influencer employed by R&F, defendant Molly Sims, posted a blog that infringed the plaintiff’s trademark because the blog promoted the allegedly infringing product. Sims decided to dismiss the complaint, saying the plaintiff failed to adequately plead the allegations of direct trademark infringement, contribution infringement, false advertising, and illegal and unfair business practices.

Regarding the direct infringement action, Sims argued that “trademark infringement liability should not cover third parties like it.” The court rejected this argument, noting that “to prevail over a trademark infringement action, a plaintiff must show that the defendant used the plaintiff’s trademark in commerce and that the use was likely to confuse customers as to the source of the product “. The court found that Sims’ blog met the requirement for commercial use because the blog advertised a product (rather than just providing consumer reviews about it). The court also found that the plaintiff had sufficiently alleged that Sims’ blogging activity would confuse customers, as the R&F product Sims promoted had the same name as the plaintiff’s branded product and the products were sold through the same channels. . As a result, the court dismissed the motion to dismiss the direct infringement action (and, for the same reasons, also dismissed the motion to dismiss the plaintiff’s action for illegal and unfair business practices).

The court, however, rejected the allegations of infringement and false advertising, finding that the plaintiff had not sufficiently invoked the facts to substantiate these allegations. The court, however, gave the plaintiff fourteen days to amend his complaint on the basis of sufficient facts to allege these allegations.

Although the Petunia products The case is far from over, social media influencers should take note of this decision and keep in mind that they could potentially be held liable for trademark infringement in relation to the products they promote in. blogs and vlogs. Social media influencers would be well advised to do their due diligence before approving a brand’s products and they might even consider entering into defense and indemnification agreements with the brands they work with before promoting the products. products of these brands.

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