FB’s “Russian state-controlled media” label wasn’t commercial advertising or promotion

Maffick LLC v. Facebook, Inc., 2021 WL 1893074, No.
20-cv-05222-JD (N.D. Cal. May 11, 2021)

Facebook’s application of “Russia
state-controlled media” label to a news page on Facebook was not commercial
advertising or promotion.
Mentioned here mostly to highlight the differences in pleading standards
applied to trademark and false advertising claims. Who here thinks that the
following language wouldn’t suffice in a run-of-the-mill trademark complaint?

Facebook’s
false and misleading labeling of Maffick has actually deceived and has the
tendency to deceive a substantial segment of the public and is material in that
it is likely to influence economic decisions by Maffick’s existing and
potential customers and business relations. Facebook has thus caused and
threatened to cause Maffick significant reputational harm and damage to its
business interests, including lost sales.

For a
false advertising claim, “[t]his is ipse dixit and not the pleading of facts.” Maffick
provided no clues about how the alleged deception of the public by the “Russia
state-controlled media” label might have affected the “economic decisions by
Maffick’s existing and potential customers,” whoever they might be, and how
those “decisions” caused a commercial injury to Maffick’s sales or business
reputation.

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