meta – Attorney Evan Brown

Plaintiffs asserted that defendant healthcare organization inadequately protected the personal and health information of visitors to defendant’s website. In particular, plaintiffs alleged that unauthorized third parties – including Meta – could intercept user interactions through the use of tracking technologies such as the Meta Pixel and Conversions API. According to plaintiffs, these tools collected sensitive health information and sent it to Meta. Despite defendant’s privacy policy claiming to protect user privacy and information, plaintiffs alleged that using defendant’s website caused plaintiffs to receive unsolicited advertisements on their Facebook accounts.

Plaintiffs sued, asserting a number of claims, including under the federal Electronic Communications Privacy Act (“ECPA”) and the California Invasion of Privacy Act (“CIPA”). Defendant moved to dismiss these claims. The court granted the motion.

To establish an ECPA claim, a plaintiff must demonstrate that defendant intentionally intercepted or attempted to intercept electronic communications using a device. CIPA similarly prohibits using electronic means to understand the contents of a communication without consent. Both laws have a “party exception” allowing a person who is a party to the communication to intercept it, provided the interception is not for a criminal or tortious purpose. In other words, there is an exception to the exception.

In this case, defendant argued it was a legitimate party to plaintiffs’ communications on a website, thus invoking the party exception. Plaintiffs countered that the exception should not apply due to defendant’s alleged tortious intent (making the information available to Facebook without disclosure to plaintiffs). But the court found that plaintiffs did not provide sufficient evidence that defendant’s actions were for an illegal or actionable purpose beyond the act of interception itself. Under the guidance of Pena v. GameStop, Inc., 2023 WL 3170047 (S.D. Cal. April 27, 2023), (a plaintiff must plead sufficient facts to support an inference that the offender intercepted the communication for the purpose of a tortious or criminal act that is independent of the intentional act of recording or interception itself), the court concluded there was no separate tortious conduct involved in the interception and dismissed the claims.

B.K. v. Eisenhower Medical Center, 2024 WL 878100 (February 29, 2024)

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In the case of Dfinity Foundation v. Meta Platforms, Inc., the court considered whether the new logo that Meta adopted after its 2021 rebranding infringed upon Dfinity’s trademark. In the infringement litigation that Dfinity brought over the issue, Meta moved to dismiss. The court granted the motion.

Dfinity operates the Internet Computer – a public blockchain network that seeks to provide developers and entrepreneurs with a public compute platform for building websites, enterprise systems and internet services within an open environment. Key to Dfinity’s efforts are “dapps” or decentralized applications. In 2021, the United States Patent and Trademark Office granted Dfinity a registration for the following mark: dfinity

When Meta rebranded in 2021, Mark Zuckerberg indicated, among other things, that the company would work with creators and developers in a decentralized fashion. In connection with the rebranding, Meta adopted and sought registration of this logo: meta logo

Dfinity sued in federal court in California alleging, among other things, trademark infringement. It alleged that the similarities between the marks, coupled with the related services and customer bases, will cause confusion because “consumers will mistakenly believe that Meta and its services … are connected with, sponsored by, affiliated with, or related to Dfinity and the Internet Computer.”

Meta moved to dismiss. In granting the motion to dismiss, the court found that confusion between Meta’s logo and Dfinity’s logo was unlikely as a matter of law.

Similarity of the marks

Employing the “sight, sound, and meaning” test, the court found the marks were dissimilar: Dfinity’s shape was a traditional infinity sign, with the lines crossing at the horizontal and vertical midpoint, rendered in a precise multicolor format that Dfinity instructs users of the logo not to alter. In the court’s view, the Meta logo looks different – while it includes two loops and bears some resemblance to an infinity sign, the lines cross above the vertical midpoint and the two loops are squished into vertical oblong shapes. Meta did not claim color as a feature of its mark.

Relatedness of services

On the question of whether the services provided under the two marks were similar, the court remained neutral. It noted that Dfinity has targeted developers interested in using blockchain to “build websites, enterprise systems and internet services within an open environment.” At the same time, “Meta targets everyone, including developers, some of whom presumably are interested in building their products within, or at least compatible with, such an ‘open environment.'” Meta argued that its products are antithetical to that vision, and there is no indication that it is interested in expanding into the realm occupied by Dfinity and the Internet Computer. But the court found that given Meta’s metamorphosis over the last few years, such a move is not implausible on the pleadings, particularly in light of Zuckerberg’s statement at the launch of the Meta brand.

Sophistication of users

The court then evaluated the types of users that would encounter the Dfinity and Meta logos, and whether, given their level of sophistication, confusion would be likely. The court found that because of the high level of sophistication, it is less likely one would be confused: “That these sophisticated people, immersed in the intricacies of the tech world, would be duped by a logo, particularly one that is not similar in key respects . . . borders on implausible.”

Actual confusion

Next the court considered whether purported instances of actual confusion weighed in favor of Dfinity. In this situation, Dfinity had provided six tweets that purported to show that users were confused. But the court disagreed. First, it noted that because the tweets were in reply to a Dfinity tweet, they did not express how the users would experience an encounter with the mark “organically”. And second, the court found that the content of the tweets indicated the users actually knew the difference between the two enterprises.

Marketing channels

Having found that the parties’ services were not “totally unrelated” at this stage, the court also found that the parties’ marketing channels were similar, but that this factor did not weigh as heavily as the others previously discussed.

Meta’s intent

Though Dfinity alleged “willful and wonton disregard of Dfinity’s established and superior rights” in its trademark, it did not provide evidence of that. And given that the court found the marks to be dissimilar, the court also found that Meta’s intent did not support a finding of likelihood of confusion.

Dfinity Foundation v. Meta Platforms, Inc., 2022 WL 16857036 (N.D. California, November 10, 2022)

Tag: meta

Meta prevails in trademark infringement litigation over its logo