Tortious Interference with a User’s “Social Media Site Contracts”

An interesting case from the Southern District of Florida recently held that a defendant tortiously interfered with the contracts that the plaintiff entered into with Twitter, Facebook, MySpace, etc., when the plaintiff signed up for accounts at those sites. In Ordonez v. Icon Sky Holdings LLC, No. 10–60156–CIV, 2011 WL 3843890 (S.D. Fla. Aug. 30, 2011), the plaintiff brought a variety of claims, all of which surrounded infringement of her common law and filed-for trademarks (according to TESS / TTAB records, the plaintiff’s application was opposed by defendant following publication but on Oct. 24, 2011, the Board dismissed the opposition following an order to show cause that went unaddressed). From a social media standpoint, the interesting aspect of the case involves the plaintiff’s claim for tortious interference with contracts. The plaintiff used the name “Elizabeth Sky” on various social media sites. After the plaintiff filed for trademark protection of “Elizabeth Sky”, the defendant:

[C]ontacted these networks [Twitter, Facebook, MySpace, etc.] and made trademark infringement complaints against Plaintiff. These complaints resulted in the cancellation or change of many of Plaintiff’s website accounts using the name Elizabeth Sky and thus interfered with her use of her Elizabeth Sky mark. . . . Such acquisition led to confusion among Plaintiff’s fans and entertainment industry professionals who followed Plaintiff’s Twitter profile.

Significantly, neither party had registered trademark for “Elizabeth Sky”.  Based on the facts alleged in the complaint, the court applied the following legal analysis:

As to the contractual relationship cause of action, first, a contractual relationship existed between Plaintiff and third party social networks including but not limited to Myspace, Facebook, Twitter and by virtue of the network policies which prompt new users to agree to the network’s terms of use before creating an account and webpage. Second, Defendants knew that Plaintiff had contractual relationships with such third parties because it is general knowledge that in order to obtain an account with a social network on the internet the user must agree to the site’s terms of use. Third, Defendants intentionally and unjustifiably interfered with the contractual relationships by misleading Facebook, Twitter and ModelMayhem as to who is the rightful owner of the Elizabeth Sky mark. Finally, Plaintiff has been injured as a direct and proximate result of Defendants’ conduct because the removal of Plaintiff’s social network web pages deprived Plaintiff of work, as those webpages were sources of leads for entertainment industry work and for the sale of her Funktality by Elizabeth Sky hat line. As such, Plaintiff satisfied each of the four requisite elements and is entitled to both injunctive relief and actual damages for Defendants’ tortious interferences with her contractual relationships.

Notably, the case was decided on default and therefore the court assumed all of the allegations in the complaint to be true. But even with that procedural posture, the case is significant in that it expressly recognized the contractual relationship between the plaintiff and Twitter, Facebook, MySpace, etc., and held that the defendant interfered with those contracts by filing false trademark infringement complaints with those sites, thus depriving the plaintiff of her right to use Elizabeth Sky as her account name. This is a warning to those who file improper complaints as well as a potential opening for plaintiffs to bring additional causes of action when others interfere with their identities on social media sites.

I am interested to hear what lawyers out there think of this decision.

About Tyson Snow

Tyson B. Snow is a partner at Pia Anderson Dorius Reynard & Moss, LLC, in Salt Lake City. He is considered an expert on social media law, particularly social media law's impact on the workplace and employment. His practice involves all areas of federal court litigation with an emphasis in employment litigation, commercial litigation, and intellectual property litigation, including trademark disputes, cybersquatting, copyrights, and other technology related issues. He also frequently litigates in Utah’s state district and appellate courts. Email: Twitter: @tysonESQ

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