No “reasonably prudent” person would believe that Arizona State University was advertising on Instagram during the pandemic for students to get “f—-ing lit” at maskless parties.
That’s why U.S. District Judge Dominic Lanza denied a default judgment motion by the Arizona Board of Regents in its quest to keep anonymous Instagram user “asu_covid.parties” from using ASU colors and logos in his profanity-laced party posts last year.
“(I)t cannot be the case that every social media post written by a college student that happens to use the school’s colors and/or logo in the post, and identifies the school’s location as the location of the poster, creates initial interest confusion and qualifies as an actionable trademark violation,” Lanza wrote in last week’s ruling.
ABOR filed its complaint against anonymous defendant John Doe in August 2020, arguing Doe was using ASU trademarks on his Instagram to spread “dangerous misinformation about Covid19 just as students are returning to ASU’s campuses to begin classes.”
Facebook was initially a defendant in the case but was dropped after agreeing to disable Doe’s account and prevent Doe from creating new ones.
Lanza noted that only one of Doe’s 19 Instagram posts – the very first one — used both ASU colors and its logo. While that post stated, “No more social distancing. No more masks. It is time to party!”, the surrounding context is important, Lanza said. The anonymous account posted the first two comments on the post, including “Those of you coming back to Phoenix. We about to get f—ing lit.”
“Although it is not uncommon for universities to attempt to appeal to students by imitating their vernacular, no university would drop the f-bomb in an official party invitation,” Lanza wrote.
Only one latter post used the ASU logo and none prominently featured the colors maroon and gold, Lanza noted.
Despite siding with Doe, the judge called him “deeply unsympathetic” and his conduct “odious.” Still, Lanza said it didn’t amount to a trademark violation.
Outside of the profanity, “there are the Nazi analogies,” Lanza said – another reason “it is not plausible (to put it mildly)” that reasonable people would think ASU was the source of the messages on the account.
“This is ASU, not the USSR, Nazi Germany, North Korea, China or Venezuela, etc. … They will use false positives to push their agenda to control you. The administration is filled with rich power hungry corrupt fascists,” one post stated.
ABOR only gave one example of someone appearing confused by the messages on the account: an anonymous Twitter user who claimed to be an ASU graduate and threatened to revoke their alumni membership.
Lanza said that wasn’t enough to establish a likelihood of confusion and that it wasn’t clear whether the poster thought ASU was behind the account or rather an ASU student.
“(E)ven assuming that one out of the ‘nearly 500,000 Sun Devils worldwide’ —that is, 0.0002% of the alumni base—believed that the profanity-laden posts coming from the ‘asu_covid.parties’ account were actually coming from ASU, this would not establish a likelihood of confusion,” Lanza wrote.
For his part, Doe has not participated in the legal proceedings since last August. He sent one email and filed a response to the complaint, which was stricken for litigation misconduct. The response included more Nazi references and lines such as “The First Amendment allows me to be as offensive as I want to be” and “This lawsuit is complete BULLS— (to use a legal term).”