Some time ago we made mention of a lawsuit brought by Facebook against the folks at Teachbook. Well, in checking back on this matter, we found that the teachers have filed a motion to dismiss Facebook’s complaint. Facebook, naturally, has opposed this motion. While the matter remains undecided, the briefs merit some comment. Facebook Inc. v. Teachbook.com LLC.
Facebook started off by accusing the teachers of creating a “strawman” argument, namely that Facebook was claiming “blanket trademark rights in the word ‘book’ when used in connection with printed publications.” This strawman was created, obviously, for the express purpose of being knocked down. Facebook, too sophisticated to fall for such a transparent ploy, responded that it had made no such claim. Rather, it maintained that “the BOOK portion of the mark is distinctive when used with social networking services.” Indeed, Facebook had alleged in its complaint, that the teachers used “the mark TEACHBOOK in connection with an online website that offers social networking services for teachers…[and] Teachbook even admits that its services are a substitute for Facebook.”
Having dodged the falling strawman, Facebook went on the offensive, arguing that Teachbook’s motion to dismiss was improper “because it relies on hundreds of pages of material outside the pleadings,” including a 349 – page attorney declaration comprising challenges to Facebook’s factual allegations. Specifically, the declaration includes:
1. Printouts from Facebook’s website;
2. A “purported (but unauthenticated)” Facebook filing from a European trademark proceeding;
3. Trademark registration certificates and printouts from the USPTO database;
4. Printouts of “alleged dictionary definitions” of the words “book” and “facebook;” and
5. A printout of a Facebook group that Teachbook contends is critical of Facebook’s litigation against Teachbook.
The teachers, it seems, wanted the Court to take “judicial notice” of the various materials in this declaration on the grounds that they were “all matters of public record.” Facebook argued that such judicial notice of public records was “permitted” only if the facts in those records are not subject to reasonable dispute.” However, it is not the accuracy or veracity of the materials to which Facebook objected, but the “evidentiary value.” What Facebook really found objectionable is the submission of evidence, by the teachers, in a motion to dismiss. In this regard, Facebook is probably correct. The motion to dismiss will likely be denied. If the matter is not settled, the teachers will ultimately present the same evidence to a jury. Unfortunately, for the teachers, most – if not all – of these materials seem to miss the mark. The issue here is whether the mark FACEBOOK is distinctive when used in connection with social networking services. The teachers, seemingly, have overlooked this point, which we noted in a previous blog entry (see: No Laughing Matter).
Much as we like to side with David, in this case, we predict victory for Goliath.