October 15, 2011

                               Facebook recently announced an overhaul to its user profiles with the creation of the Facebook Timeline. Besides whipping Facebook users into a frenzy with another change to its format, the company also managed to draw the ire of Timelines, Inc.(Timelines), which slapped them with a trademark infringement lawsuit. Timelines is a small company that runs the website Timelines.com where users can organize memories in a scrapbook-like fashion. Timelines has registered trademarks for “Timelines,” “Timelines.com,” and “Timelines and design.” The company alleges that Facebook’s new Timeline profiles infringe on its trademarks and that the new Facebook feature could put Timelines out of business.
This lawsuit can be seen as representative of the type of obstacles that innovative, multinational corporations run into when developing new technologies. Analyzing this lawsuit helps uncover some of the complexities involved in trademark litigation. In trademark infringement claims, the plaintiff alleges that consumers will be confused by the defendant’s mark. There are a series of factors that courts consider in determining whether infringement has occurred, the most important of which are the strength of the mark, proximity of the services or goods, and similarity of the services or goods.

Perhaps the most interesting factor to consider is the strength of the mark because “Timelines” seems like a weak mark and possibly should not have been afforded trademark protection in the first place. There are four different levels of mark strength: fanciful/arbitrary, suggestive, descriptive, and generic. Fanciful/arbitrary and suggestive do not apply to “Timelines” because the mark is not a made up term or a term that evokes something other than what it is. Generic marks do not qualify for trademark protection so Timelines must have gotten the trademark application for registration approved through the descriptive category. Descriptive marks have a secondary meaning that warrants protection. A court considers weaker marks to be less worthy of protection because they have less economic value to consumers. Therefore, the strength of the mark factor favors Facebook.
The proximity of services or goods and similarity of services or goods between the Timelines’ website and Facebook’s Timeline are where Timelines has its strongest argument for infringement. Timelines operates a website where users can store and share events of their lives through pictures, videos, and links. Facebook’s Timeline feature allows its users to store and share their life events, which seems very similar to Timelines’ website. Actual inspection of Timelines’ website reveals that it has more of a focus on major events in history than on individuals’ personal histories. Regardless, the similarity in function would favor Timelines for the similarity of services or goods factor.
Lastly, for proximity of services or goods, both services operate in the same Internet marketplace. Facebook’s Timeline feature and Timelines’ website are offered to online consumers who want to capture and memorialize events. In Timelines’ complaint it alleges that Facebook’s Timeline has already siphoned off Internet traffic from the Timelines website. Both services are free to use so Facebook and Timelines make money through advertisement revenue, albeit Facebook takes a unique approach to acquiring their money. Internet traffic drives advertisers to pay for their ads to be on high traffic websites because more consumers will view the ads. If Facebook has actually taken traffic away from Timelines’ website, it would demonstrate that Facebook’s Timeline feature operates in a similar market and adversely impacts Timelines’ business. Therefore, the proximity factor would also seem to favor Timelines in the lawsuit.
Based on the analysis of the three most important trademark infringement factors, it seems that Timelines has some merit to its claim that Facebook infringed on its marks. Whether a judge will actually get to make that determination is another matter considering the likelihood that Facebook will settle this lawsuit. This type of lawsuit has implications for how technology companies handle naming their products. However, there are still questions about how Facebook could have missed Timelines trademarks, especially since Timelines has its own Facebook page.

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