Facebook Pulled into a trademark Debate Between Two Spas - Click here http://bit.ly/eJvLTz to view full article

Traditionally, if a business opened close enough to another business to be in competition for customers, it was legally barred from using the same trademarked name. But if there were sufficient geographic distance between the businesses, there would be no trademark infringement.

Like so much in modern life, though, this is a legal issue that is being reexamined due to the impact of the Internet.

In 2008, Complexions Spa in Albany, New York created a Facebook page, which eventually garnered it approximately 1,000 Facebook fans.

However there was already a spa with a similar name—Complexions Day Spa in Seal Beach, California. Complexions Day Spa complained to Facebook that Complexions in Albany was getting undeserved attention and business through its use of an already trademarked name, and demanded that its Facebook page be taken down.
There seems little merit to Complexion Day Spa’s complaint, since the two businesses are not competing for the same customers, however Facebook did what websites nearly always do when there’s the slightest chance of their becoming implicated in a legal wrong, and it immediately acceded to Complexions Day Spa’s demands.

The irony though is that Facebook’s safety-first strategy designed to avoid litigation has resulted in its being sued, for Complexions of Albany didn’t take the removal lying down. It went to United States District Court to demand its Facebook page back, alleging that the deletion has resulted in “lost sales and marketing potential.” In addition it alleges that Complexions Day Spa engaged in deceptive practices of its own, sending “friend requests” to those listed as fans of the Albany-based Complexions.

Most observers believe the lawsuit has little or no chance of success. Facebook has a First Amendment right to decide whether to allow Complexions to express itself through a Facebook page or not. Furthermore, Congress has separately immunized websites from just this kind of liability arising from their “filtering” decisions.

Are there any lessons that small businesses can take from this dispute? Actually several, though bear in mind that the situation is fluid, and the law and/or common practice could easily change:

One, trademark issues no longer have the geographic limits they used to, so don’t think you can’t raise a complaint, or have a complaint raised against you, just because you and another business are not located close to each other.

Two, Facebook is quick to relent if anyone raises a concern that something it is doing or allowing may open it up to legal liability. As long as a complaint has at least some minimal plausibility, a business can pressure Facebook to delete another business’s page. Though on the other hand, perhaps a business could avoid having its page removed by putting equal or more pressure on Facebook. So if Facebook takes down your page for dubious reasons, or threatens to, you can fight back.

Three, if you ever were to get into a dispute with Facebook that went to court, you’re unlikely to prevail. The Constitution and federal law both appear to give Facebook an almost total prerogative over what expression it does or doesn’t allow on its website.

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