The Arizona Board of Regents cannot sue the owner of an Instagram account that encouraged students to attend parties during a surge of COVID-19 cases for trademark infringement, according to a ruling issued by a federal judge Wednesday.
ABOR, which filed the complaint on ASU's behalf on Aug. 20, 2020, sued the anonymous Instagram account owner of "asu_covid.parties" and Facebook, which owns Instagram. The suit argued that the anonymous user was illegally using ASU trademarks and colors to promote unmasked parties and misinformation.
In July 2020, the account's first post included ASU's logo and had "No more social distancing. No more masks. It is time to party!" written in gold on a maroon background.
Facebook deleted the account shortly after the lawsuit was filed, and ABOR dismissed Facebook as a defendant.
In his ruling, U.S. District Judge Dominic W. Lanza wrote that ABOR did not show that the "asu_covid.parties" Instagram account violated trademark law.
Instead, Lanza wrote that the content of the posts was such that "a reasonably prudent consumer would not be deceived or confused" into thinking the posts came from an official ASU outlet.
"We are digesting the judge’s opinion, and while we disagree with the conclusion he reached and believe there are errors in his analysis, we note his recognition of 'odious' conduct of this 'deeply unsympathetic defendant,'" a University spokesperson said in an email statement. "At a time when students were returning to campus amidst the first wave of the COVID pandemic, ASU’s concern for the health of its students and the greater university community necessitated this lawsuit."
Before the account was deleted, the user posted photos with captions calling President Michael Crow "Führer Crow," claiming to be a community assistant and threatening anyone who was to show up to the "parties" with a mask on, according to the ruling.
Out of the account’s 19 Instagram posts, only the very first post had ASU’s maroon and gold colors and the school’s logo on it.
A person who claimed to be the unknown account holder, referred to as "John Doe" in the ruling, only responded to the complaint once, on Aug. 24, four days after the complaint was filed. But it was thrown out from court records because it was "filled with obscenities, inflammatory language, and insults directed toward ABOR and its counsel," the ruling said.
The account holder has not reappeared in the case since the Aug. 24 filing.
ABOR argued that the account created initial interest confusion, a trademark doctrine that bans using trademarks to catch the consumer’s attention.
But the judge ruled the comment on the initial post, "we about to get f---ing lit," was too profane to lead students to believe ASU was behind the post.
"Although it is not uncommon for universities to attempt to appeal to students by imitating their vernacular, no university would drop the f-bomb in an official party invitation," Lanza wrote in the ruling.
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