Le-Vel Brands, LLC recently sued Thrival Nutrition, LLC in the Eastern District of Texas (4:19-cv-00698-SDJ) for trademark infringement and unfair competition arising from Le-Vel's use of THRIVE and Thrival's use of the allegedly infringing THRIVAL mark.
To prevail, Le-Vel will need to prove there is a likelihood of confusion. While it may seem like a high burden to meet, Le-Vel will have help from an unlikely source — Thrival's own social media posts. As set forth in the very first paragraph of the Complaint, Thrival has admitted on its Facebook page that there is confusion between the two companies:
While Thrival may ultimately be able to explain away these posts, the bottom line is that an explanation will undoubtedly be needed.
Takeaway
Lured by the ease and informality of posting on social media, businesses often post messages without vetting the content. The reality is that such posts are virtually permanent and relatively easy to find. Thus, the content should be vetted in the same way as formal press releases and advertising.
Further, a business should restrict access to only certain employees who have permission to post on its behalf and should have some process for vetting the content of those posts to avoid embarrassment or, worse, liability.
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