The parties in the case of H.I.S.C., Inc. v. Franmar are competitors, each making garden broom products. In earlier litigation, the defendant filed a counterclaim against plaintiff for trade dress infringement, and successfully obtained an injunction against plaintiff, prohibiting plaintiff from advertising brooms designed in a certain way. Defendant asked the court to find plaintiff in contempt for, among other reasons, certain social media posts that plaintiff posted before the injunction, but that still remained after the injunction was entered. The court agreed that the continuing existence of such posts was improper and found plaintiff in contempt for having violated the injunction.
The court noted that the injunction prohibited “[a]dvertising, soliciting, marketing, selling, offering for sale or otherwise using in the United States the [applicable product trade dress] in connection with any garden broom products.” It observed that “[o]n the Internet and in social media, a post from days, weeks, months, or even years ago can still serve to advertise a product today.” The court cited to Ariix, LLC v. NutriSearch Corp., 985 F.3d 1107, 1116 n.5, in which that court noted that one prominent influencer receives $300,000 to $500,000 for a single Instagram post endorsing a company’s product – a sum surely including both the post itself and an agreement to continue allowing the post to be visible to consumers for a substantial duration of time. Interestingly, the court found that the nature of a social media post may be different from a television or radio advertisement that has a fixed air date and time. Accordingly, the court found that it was inappropriate for social media posts published before the injunction to stay online.
H.I.S.C., Inc. v. Franmar Int’l Importers, Ltd., 2022 WL 104730 (S.D. Cal. January 11, 2022)
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