Rising Liability for Social Media Influencers
Attention all social media influencers! Pay attention to Petunia Products, Inc. v. Rodan and Fields LLC, a case from the Central District of California.
Way back in my first blog post, I explained that, as influencer marketing grows, it will increasingly draw the attention of regulators. Now influencers must also worry about becoming the target of lawsuits brought by brands for trademark infringement. This possibility came to bear in Petunia Products, Inc. v. Rodan and Fields LLC, et al., 21-cv-00630 (C.D. Cal. 2021).
The plaintiff, Petunia Products, owns the BROW BOOST ® trademark, which is used to market its “Billion Dollar Brows” eyebrow product. Petunia sued Rodan & Fields, a multi-level marketing company specializing in skincare products, alleging that Rodan’s “Brow Defining Boost” product creates customer confusion, leading consumers to believe Rodan’s product was affiliated with Petunia’s. The complaint contains claims of trademark infringement, contributory infringement, false advertising, unfair business practices, and trademark dilution, under federal and state laws.
What makes this lawsuit remarkable is that Petunia also asserted the same claims against the model/influencer, Molly Sims, who, according to the complaint, was engaged by Rodan to promote Rodan’s product in her blog. While brands routinely spar over intellectual property claims, they rarely drag the celebrities or influencers to court. Apart from the questions surrounding whether such suits have legal merit, suing a personality with a large following is a risky gambit. While an additional defendant may provide an additional avenue to collect monetary damages (especially if the influencer is wealthy or wants to settle the case quickly), the plaintiff risks drawing the ire of the influencer’s fans.
In response to the lawsuit, Sims filed a motion to dismiss the claims against her. She contended that “liability for trademark infringement should not cover third parties, like her, that author sponsored blogs about a product without confirming that the product does not violate trademark rights.” She also argued that Petunia failed to adequately allege that her blog post was likely to cause consumer confusion (a requirement in a trademark infringement claim), or that she used the allegedly infringing mark “in commerce” (another element of the claim). On the last point, she asserted that a ruling to the contrary would have First Amendment implications and stifle “legitimate commentary.”
The court disagreed. In denying Sims’s motion, the court held that it was reasonably inferable that the blog post was not “mere commentary, which is protected by the First Amendment,” but a “paid advertisement” that “crossed from protected consumer commentary to commercial use.” The court noted that, in the blog post, Sims thanked Rodan for sponsoring the post and included a link to Rodan’s website, where readers could “shop the product.” As a result of the court’s decision, the claims against Sims will proceed, and Sims may be exposed to some degree of legal liability for participating in the alleged infringement.
It’s too early to tell how the rest of the case (and potential appeals) will unfold, but this could lead to a shift in best practices for influencer marketing. Influencers will almost certainly want to conduct greater diligence into the products or brands they sponsor. They may also demand (depending on negotiating leverage) indemnity provisions in their sponsorship agreements, and seek insurance to cover claims of trademark infringement. Regardless of the outcome of this case, before signing a sponsorship agreement with a brand or product, influencers should consult with an attorney and assess their exposure to liability.
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