You should never forget about social media if you are in a lawsuit.
In a trademark dispute, the Plaintiff brought a contempt motion because infringing marks were posted on Facebook. Fortune Hi-Tech Mktg. v. Isaacs, 2010 U.S. Dist. LEXIS 135130 (E.D. Ky. Dec. 21, 2010).
The parties had an Agreed Order where the Defendant was required to remove the allegedly infringing marks off their different websites. Fortune Hi-Tech Mktg. at *3.
Unfortunately, the Defendant forgot to take down the material on two Facebook groups. Fortune Hi-Tech Mktg. at *6-7.
In order to show contempt, a party must “produce clear and convincing evidence that shows that ‘[the opposing party] violated a definite and specific order of the court requiring him to perform or refrain from performing a particular act or acts with knowledge of the court’s order.'” Fortune Hi-Tech Mktg. at *6.
In this case, while the Defendant had “forgotten” about the Facebook groups with the marks subject to the Agreed Order, the Court held the contempt allegation was moot. Fortune Hi-Tech Mktg. at *7. After receiving the “reminder” of a contempt motion, the infringing marks were removed from Facebook. Id.
The Defendant did dodge a contempt violation, but the Court did a very stern warning, “[T]he Court will not accept any further excuses. The Agreed Order is clear, and [the Defendant] must make all reasonable efforts to ensure that he continues to obey the Court’s Agreed Order.” Fortune Hi-Tech Mktg. at *8.
Bow Tie Thoughts
Social media is easily created and can potentially be forgotten about. Whether it is in issuing a litigation hold or complying with a take down order, do not forget social media.
Great advice. More lawyers need to be aware of additional issues that social media sites create.
I concur- especially for lawyers who deal with consumers
and younger clients.