You “Like” Me? I Must Be Famous!
One of the requirements for proving a claim for trade dress dilution is that the claimant’s trade dress must be “famous.” 15 U.S.C. § 1125(c)(4). Surveys to establish famousness are notoriously expensive. Can social media provide a cheap alternative to a survey? Not exactly, but one court made a step in that direction. Paramount Farms Int’l LLC v. Keenan Farms, 2012 WL 5974169 (C.D. Cal. Nov. 28, 2012), is the first case I know of that recognizes brand recognition among social media users as an indication of famousness.
In analyzing whether the plaintiff established the required elements of a trade dress dilution claim, the court in Paramount Farms noted that the plaintiff had a Facebook page with almost 300,000 “likes.” The court did not regard the “likes” as conclusive evidence of actual recognition of the plaintiff’s associated trade dress, but did note that the brand’s Facebook popularity gave credence to other evidence that the trade dress has become famous.
Well, a Facebook “like” might not be protected under the First Amendment, but at least it’s good for something.