In the internet age, a tension has arisen between products and fans who express their product enthusiasm in various forms to the population as a whole. Such enthusiasm begs the question: Does fan fidelity boost the popularity of a trademark or does it threaten trademark rights? In this Commentary, Anne Gilson LaLonde discusses fandom and trademark rights and examines the handling of trademark problems posed by fan-created content. She writes:
Trademark owners should watch for content that suggests official endorsement, especially when combined with a domain name or other location on the Internet where the public would naturally seek the product. For example, in November 2004, a Barack Obama fan posted an unofficial fan page for the then-Senator at www.myspace.com/barackobama. The page drew 160,000 friends and the impassioned fan spent hours working on the site while Obama’s candidacy took off. The Obama campaign, at first supportive, apparently became nervous that such a powerful portal was not in the hands of the campaign. What happened next is somewhat unclear, but ultimately MySpace blocked the fan’s access to the page for violating the site’s terms of service as misrepresenting himself as Barack Obama. The site is now an official Obama page.
However, fans running a true fan site could make two strong arguments against a claim for an injunction based on likelihood of confusion. First, many fan sites are noncommercial, and the Sixth Circuit has found that a fan website was noncommercial and thus did not infringe. The defendant, upon learning that a new mall was being built near his home, put up a web site with the name of the mall in the domain name: www.shopsatwillowbend.com. The site contained information about the mall and its stores, a disclaimer stating that the site was unofficial, and a link to the mall’s official site. The court noted that the Lanham Act only regulates commercial speech: “If [the defendant’s] use is commercial, then, and only then, do we analyze his use for a likelihood of confusion.” It concluded that, as long as there were no commercial links, advertising or other “specifically commercial content” on the site, there was no commercial use to be enjoined “and the Lanham Act cannot be properly invoked.”
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