FB's "Russian state-controlled media" label wasn't commercial advertising or promotion

Maffick LLC v. Facebook, Inc., 2021 WL 1893074, No. 20-cv-05222-JD (N.D. Cal. May 11, 2021)

Facebook’s application of “Russia state-controlled media” label to a news page on Facebook was not commercial advertising or promotion. Mentioned here mostly to highlight the differences in pleading standards applied to trademark and false advertising claims. Who here thinks that the following language wouldn’t suffice in a run-of-the-mill trademark complaint?

Facebook’s false and misleading labeling of Maffick has actually deceived and has the tendency to deceive a substantial segment of the public and is material in that it is likely to influence economic decisions by Maffick’s existing and potential customers and business relations. Facebook has thus caused and threatened to cause Maffick significant reputational harm and damage to its business interests, including lost sales.

For a false advertising claim, “[t]his is ipse dixit and not the pleading of facts.” Maffick provided no clues about how the alleged deception of the public by the “Russia state-controlled media” label might have affected the “economic decisions by Maffick’s existing and potential customers,” whoever they might be, and how those “decisions” caused a commercial injury to Maffick’s sales or business reputation.