As social media and the numerous platforms continue their exponential growth in popularity and constant evolvement, legal issues surrounding their use also will inevitably emerge. A recent case filed in the Western District of Michigan is a prime example. In Beer Exchange, LLC v. Bexio, LLC, the plaintiff claims that use of a certain Twitter handle and tags on Instagram by the defendant is causing a likelihood of confusion that amounts to trademark infringement under both federal and state law.
Beer Exchange owner of a bar and restaurant/café based in Michigan that offers food and drink under the service mark THE BEER EXCHANGE and KALAMAZOO BEER EXCHANGE. Beer Exchange’s website describes its establishment as “a two-story multi-tap bar and grill located in the beautifully restored Globe Building in downtown Kalamazoo” which offers “28 rotating draught beers from around the world.” According to the Complaint, widespread promotion of the plaintiff’s marks has led to commercial success and recognition by consumers beyond its geographical location. Bexio, LLC is an online beer exchange network that allows beer connoisseurs to trade rare beers. According to Bexio’s website, the goal “is to make trading beer more fun and accessible, while supporting craft breweries and fostering a sustainable craft beer community.”
Beer Exchange notes in the Complaint that it uses marketing best practices to use the same user name, “@thebeerexchange”, across all social media platforms and that it appears Bexio does the same, using “@thebeerexchangeapp,” except for the challenged use on Instagram. Beer Exchange’s grievances stems from Bexio’s posts on Instagram under the “@thebeerexchange” user name, which is identical to Beer Exchange’s Twitter handle. The Complaint states that Beer Exchange has been using its Twitter handle almost four years before Bexio’s use of “@thebeerexchange” on Instagram and has a federally registered trademark for THE BEER EXCHANGE.
The Complaint goes on to list numerous instances of consumer confusion in which consumers erroneously believe that the “@thebeerexchange” user names on both Twitter and Instagram belong to Bexio and tag this user name on Twitter in reference to Bexio and not Beer Exchange. In one example, Bexio sponsored beer giveaway contests and numerous consumers reposted the contests on Twitter, tagging Beer Exchange using its Twitter handle “@thebeerexchange” when it appeared the consumers meant to tag Bexio. This, alleges Beer Exchange, falsely suggests to consumers (as well as anyone who searches for Beer Exchange’s Twitter handle on Twitter) that Beer Exchange is the sponsor of the contest. The Complaint also cites numerous situations in which consumers post photos of beers to be traded and tag the photo with “@thebeerexchange” when intending to tag Bexio, again falsely suggesting to consumers that Beer Exchange was the source of the beer in the photo and any trade that occurred.
It will be interesting to see how Bexio answers. In its response to Beer Exchange’s cease-and-desist letter (Exhibit C to the Complaint), Bexio stated that the difference in services and logos prevented any infringement. Arguably its use of the terms “the beer exchange” is also highly descriptive and could constitute fair use. However, in order to successfully use this defense, a defendant must have “used [the allegedly infringing term] fairly and in good faith only to describe to users the goods or services of [a] party, or their geographic origin,” Lanham Act Section 33(b)(4) and it remains to be seen if Bexio can qualify if such a defense is asserted. And if such a defense is asserted, Bexio will have to address the fact that the purpose of a user name, especially on social media platforms, is to indicate the source of the information (and likewise the goods or services) associated with that user name.
Another interesting issue, which is emphasized in the Complaint, is that the cited instances of consumer confusion are very public. Whereas, traditional evidence of consumer confusion generally involved a consumer erroneously contacting the plaintiff directly via mail, phone or even email, such confusion was not public. In the present case, the erroneous tags are posted on the internet and accessible to anyone searching or following the user name. Thus, consumer confusion in social media may feed into even more consumer confusion much more rapidly than in other traditional media. This case highlights how the use of something as mundane as an account user name, at least in the context of social media, should now be cleared prior to use, especially in the case of businesses using social media to market and advertise their goods or services.