Handling fake Facebook page and trademark infringements for Startups

Lawyers at VakilSearch share from their personal experiences

This is a classic case of passing off / trademark infringement. A Facebook page is the identity of your business, as much (or more in some cases) as the website. Therefore, creating a fake fan page is a clear case of intellectual property rights violation. The situations are different

a. If you have a trademark and

b. If you do not have a trademark

If you have a Trademark

You will have to file a suit immediately for trademark infringement. In the suit, you can ask for an injunction as well as compensation from the other side for the loss or harm caused to you by the fake facebook page. For example, if 200 people have liked the fake page, that is a clear indication that you have lost out on loyalty building and several potential customers.

Before filing a trademark suit, you can send a legal notice asking the other side to pull down the fake page immediately. In many cases, the legal notice might be sufficient to frighten the offender.

If the legal notice does not work try to negotiate (mediate) the dispute with the other side and reach a settlement. If no settlement is reached, do not lose a single further moment in filing your trademark suit.

If you do not have a Trademark

Whenever you create a brand or an identity which has value in the eyes of law, you ought to get a trademark to protect it. This trademark gives you a direct remedy in case someone uses your identity to promote their product / service.

What if you do not get a trademark for your identity and someone copies your name / logo? Then you will be protected by the law of passing off.

The point of passing off is to protect those who have not got a trademark against an invader of their commercial interests.

For example

I have a restaurant called “Mahesh Seafood Palace”. I start it hoping to market my Goan fish fry to the people of Pune. Before I know it, business has taken off and I am the talk of the town. In the struggle of setting up the business up, I have not got trademark protection. A few days later, driving down Fergusson College Road, I discover a “Mahesh Seafood Castle”.

The owner of Mahesh Seafood Castle has copied my name (well, almost) because of the success I worked so hard to earn. This example is identical to the case of a fake Facebook page.

Legal action you can take against ‘passing off’

There are a few steps you can take to solve the problem. The first is always to send a legal notice to the other side, threatening to take legal action. Here, you make it clear to the other side that you intend to take legal action, and that you will do so unless he changes his name – to “Santhosh Machhi Bhavan” (or in this case, pulling down the false facebook page).

If he does not change the name even after you send him the legal notice, you can try one last time to negotiate with him – mediation often helps to resolve disputes amicably.

If nothing helps and he is determined to exploit your goodwill, immediately file a suit under Order VII Rule I of the CPC for the tort of passing off. Along with filing a suit, ask for an injunction against him ordering him to remove the offending facebook page.

A Few Points To Remember

Point one: First, if you have not got trademark protection yet, get it immediately. Although poor Mahesh can get relief in the example above, it is much more laborious and time consuming than if he had applied for a trademark first.

Point two: If you find yourself a victim of trademark violation, aggressively try to settle the dispute. Settlement is the best option given how expensive and time consuming it is to litigate a dispute in Indian Courts.

About VakilSearch

VakilSearch is India’s leading online legal services provider for businesses and individuals. As the official partner of the Confederation of Indian Industry (CII) and knowledge contributor to Sulekha.com, the Hindu Business Line, Entrepreneur Magazine and the All India Rubber Association, VakilSearch reaches out to thousands of businesses, entrepreneurs and individuals on a regular basis. So when you visit vakilsearch.com, you can be assured of quality legal guidance and comprehensive documentation for your business and personal needs, at affordable prices