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.

VideoEgg Answer

Prior post - Defendant's Answer.

EMI v. VideoEgg/Hi5

08-cv-5831 (S.D.N.Y. complaint filed June 27, 2008).

capitol videoegg 080627complaint - Upload a Document to Scribd

Read this document on Scribd: capitol videoegg 080627complaint

Multiply Inc. Sued by Major Label

Capitol Records, and a host of other entities owned and/or controlled by label giant EMI Music, sued the company Multiply Inc. in the United States District Court, Southern District of New York. Plaintiffs allege copyright infringement arising from unauthorized use and exploitation of original sound and video recordings by encouraging and enabling users of Multiply to upload and share performances of well-known musical groups.

What gives? This sounds like EMI is suing YouTube type service. But, after casually visiting Multiply's website, which boasts "Multiply makes it easy to create, share and discuss your blog, photos, videos and music with more of the people you know, and less of the people you don't"; it looks like this is more of an online storage site, giving users their own "homepage" to share with the world. But, is this any different than MySpace? Is EMI just going after the little-guy, hoping for precedential effect against the behemoths in the future?

[Capitol Records Inc.; Caroline Records Inc.; EMI Christian Music Group Inc.; Virgin Records America Inc.; Colgems EMI Music Inc.; EMI April Music Inc.; EMI Blackwood Music; EMI Full Keel Music; EMI Grove Park Music Inc.; EMI Longitude Music; EMI Robbins Catalog Inc.; EMI U Catalog Inc.; EMI Virgin Music Inc.; EMI Virgin Song Inc.; EMI Waterford Music Inc. v. Multiply Inc.; filed 12/18/2007; case CV-11357]

Universal Joins Forces With Social Networking Site

The Wall Street Journal reports that Universal Music has joined forces with social networking service Imeem, Inc. The licensing agreement will allow Imeem's 19 million users to listen to, and embed, Universal music & videos for free on their personal pages. On Universal's end, it will receive a penny-rate payment each time a user listens to one of its songs in addition to sharing advertising revenue associate with a given song. The deal thus promises to provide labels "a revenue stream they've never seen before".

With this deal, Universal joins the other major label groups and marks the first of its kind to cover all four majors. Notably, Universal has a rough-history in such deals - it sued MySpace.com last year for copyright infringement, alleging that the site didn't do enough to prevent users from posting copyrighted materials without authorization.