A Facebook friend of client (a non-attorney) posted a question on Facebook regarding a potential trademark dispute, asking her friends to weigh in with their opinions as to whether it might be an infringement. The summary of the facts (no doubt missing some of the details) concluded with a request: Appreciate your thoughts and want to explore before I call my own attorney.
Here was my response:
I am a trademark attorney. And while I won’t comment here on the particulars, I would note that seeking input from others about a potential legal situation on FB is probably not the best idea. In a worst case scenario you could say or learn something via the post that could come back to harm any potential claims down the road.
I didn’t even get into other issues, like attorney-client privilege that could be waived if the poster’s attorney actually commented on it, or laches/acquiescence that could begin to toll more now that it has been made public that the poster is aware of the issues.
This is not the first time I have exhorted someone on Facebook not to share their potential trademark issue. Sharing it has a lot of potential downside, and little potential upside. What if dozens of people comment and almost all think that there is no infringement. And what if the alleged infringer sees that post or finds it later!? If they receive a “cease and desist” letter, I can only imagine the reaction.
And could a Facebook post be the basis for a declaratory judgment action? Probably not, but worth considering.
For some fun, true, and sad legal tips via Facebook, make sure to see https://www.facebook.com/funlegaltips/
And for my Facebook page, full of fun trademark news and tips, see: