Band's Shut-Down Facebook Page Not A "Use In Commerce"; Injunction Vacated

Emerald City Mgmt., LLC v. Kahn, No. 15-40446 (5th Cir. Mar. 8, 2016) [decision].


The Fifth Circuit vacated a preliminary injunction ordering the leader of a band called "Downtown Fever" to transfer control of a Facebook account to the band's manager who had registered the mark "Downtown Fever."  The lower court had issued an injunction barring defendant from using the band name, and the defendant thereafter voluntarily de-activated the band's Facebook page.  Then, the lower court found that the plaintiff should be granted an injunction ordering the defendant to give control of the Facebook page.  However, the appeals court found that was an abuse of discretion because "neither shutting down a Facebook account nor blocking administrator access to a Facebook account constitutes 'use in commerce' of a trademark.  Because the Facebook page was not accessible to anyone, the defendant was not using the trademark.