It is a common practice: Bloggers and other online influencers promote and link to products for sale. Then, as more and more people link from that blog to purchase products, the influencers eventually get sponsorship money from products manufacturers to keep promoting those products.
One question that almost never crosses the minds of the bloggers and influencers is: What happens if the products you are promoting are an infringement on another company’s trademarks? If you are promoting a product that is a trademark infringement, could you be brought into a lawsuit and held liable for your part in promoting the infringing product?
A recent court case suggests that you could.
Current trademark infringement suit
A federal trademark infringement case involving an online influencer suggests that individuals can be brought into an infringement lawsuit for their part in promoting an infringing product.
As reported by IP Watchdog online, Petunia Products, Inc., a beauty product company, sued model, blogger and online influencer Molly Sims. The lawsuit claims that Sims’s promotion of a competing eyebrow product, which touted its “Brow Defining Boost” was a direct infringement on Petunia’s “Brow Boost” description of its own “Billion Dollar Brows” product.
The case is still in progress, but the recent refusal of the defendant’s Motion to Dismiss suggests that Petunia does have a case here. If Petunia can establish that the “Brow Defining Boost” description Sims used could confuse customers into thinking this was the “Brow Boost” of Petunia’s product, there could be an infringement.
What does this mean?
For bloggers and other online influencers, the conclusion of this case could have significant impact on their potential exposure to direct infringement claims like the one Molly Sims is facing. Although this case is still in progress, a Petunia victory could result in a significant increase in trademark infringement claims against well-meaning online personalities promoting third-party products.
Make sure you are careful with how you promote a company’s product in your online space. If you have any doubts about whether you might be inadvertently committing trademark infringement, talk with an experienced intellectual property lawyer.