Late last month, Judge Seeborg dismissed Cohen v. Facebook, Inc., a class action suit brought in the Northern District of California. Cohen involved one of Facebook’s newest services, Friend Finder, which provides suggested new “friends” to current Facebook users. Friend Finder searches users’ email databases for new contacts and common contacts among users. Friend Finder then solicits new users and suggests new friends to current users, increasing the Facebook network. Facebook promotes the service by displaying the names and photos of users who have purportedly found new friends via Friend Finder on its website. The Cohen decision will allow Facebook to continue promoting its Friend Finder service for the foreseeable future, but leaves open the door for future claims of misappropriation and perhaps false endorsement and unfair competition.
Plaintiffs in Cohen alleged that Facebook used their names and likenesses without consent or knowledge to advertise Friend Finder, thus increasing the Facebook network and boosting commercial advertisement sales. Plaintiffs brought suit alleging misappropriation in violation of the common law right to privacy and Cal. Civ. Code § 3344 , as well as false endorsement in violation of section 1125(a)(1) of the Lanham Act and unfair competition under Cal. Bus. Code. § 17200 .
In its motion to dismiss, Facebook argued that plaintiffs consented to the use of their names and likenesses as part of Facebook’s terms and conditions. Although the court ultimately dismissed all four counts with leave to amend, it refused to accept that plaintiffs had consented to the use of their names and likenesses for an endorsement of a Facebook service. Rather, the court relied on plaintiffs failure to allege any injury, noting that had they at least pled mental anguish the misappropriation claims might have gone forward. The Cohen court also dismissed the claims of false endorsement and unfair competition due to the plaintiffs lack of “commercial interest” in their names and likenesses, noting that it was “not clear how this defect could be cured” for future claims (absent adding Brad Pitt or Angelina Jolie as plaintiffs.) Thus, future plaintiffs may have viable claims against Facebook for its promotion of Friend Finder under a misappropriation theory, but claims of false endorsement and unfair competition appear to be limited to celebrities.
- Randy Shaheen and Jocelyn Wiesner