Case 2:20-cv-01638-DWL Document 1 Filed 08/20/20 Page 1 of 24
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`
`
`Glenn S. Bacal (AZ Bar No. 006812)
`E-mail: glenn.bacal@bacalgroup.com
`Sean D. Garrison (AZ Bar No. 014436)
`E-mail: sean.garrison@bacalgroup.com
`Direct Dial: 480-719-8501
`BACAL LAW GROUP, P.C., DBA
`BACAL & GARRISON LAW GROUP
`6991 East Camelback Road, Suite D-102
`Scottsdale, Arizona 85251
`Fax: (480) 245-6231
`
`Attorneys for Plaintiff for Plaintiff Arizona Board of Regents,
`for and on behalf of Arizona State University
`
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF ARIZONA
`
`Arizona Board of Regents, a body
`Case No.
`corporate, for and on behalf of
`
`Arizona State University,
`
`VERIFIED COMPLAINT FOR
`Plaintiff,
`DIRECT AND CONTRIBUTORY
`FEDERAL TRADEMARK
`INFRINGEMENT, FALSE
`DESIGNATION OF ORIGIN AND
`FALSE ADVERTISING UNDER
`LANHAM ACT SECTION 43(a),
`STATE TRADEMARK DILUTION
`UNDER A.R.S. 44-1448.01, AND
`UNFAIR COMPETITION
`
`
`(Jury Trial Demanded)
`
`
`
`
`v.
`
`John Doe aka “asu_covid.parties”, an
`individual, and Facebook, Inc., a
`Delaware corporation
`
`Defendants.
`
`
`
`
`
`
`INTRODUCTION
`This action involves the unauthorized use of Plaintiff’s ASU and ARIZONA STATE
`UNIVERSITY federally registered trademarks as well as ASU’s school colors trade dress by an
`Instagram account – “asu_covid.parties” – to promote a so-called “Hoax-19” Covid party,
`claiming that Covid-19 is “a big fat hoax,” and spreading dangerous misinformation about Covid-
`19 just as students are returning to ASU’s campuses to begin classes on August 20, 2020.
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`Case 2:20-cv-01638-DWL Document 1 Filed 08/20/20 Page 2 of 24
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`Plaintiff Arizona Board of Regents, a body corporate, for and on behalf of Arizona State
`University (“ASU”) brings this action to stop this unauthorized use of the ASU Marks and trade
`dress and to shut down the “asu_covid.parties” Instagram account. This unauthorized use of
`ASU’s trademarks and trade dress not only harms ASU, but if not enjoined is also likely to
`endanger the health of the university community. There is already evidence of at least one instance
`of actual confusion regarding ASU’s affiliation with this Instagram account, with an alumnus
`threatening to cut off all support for ASU because of the apparent misperception that this account
`and its messaging comes from or has been sanctioned by ASU.
`ASU also seeks relief against Facebook, Inc., the owner and operator of the Instagram
`platform and service, as a contributory infringer of ASU’s federal intellectual property rights.
`Before filing this action, ASU first filed a trademark infringement report with Instagram
`requesting that Instagram remove or alter the offending account but Instagram has refused to
`remove or otherwise require any modifications of the account or its posts. Despite actual
`knowledge of the infringement, and the ability to control and monitor the “asu_covid.parties”
`account on its platform – and contrary to its own terms, policies and community guidelines –
`Facebook continues to provide its Instagram service to “asu_covid.parties,” which in turn provides
`the means of infringement.
`Further worsening this situation, the initial investigation indicates that the parties behind
`this account may be located in Russia and are using the account to sow confusion and conflict and
`to interfere with the health of the Arizona State University community by trying to worsen the
`pandemic here. This lawsuit is also necessary in part to discover the true identity of the parties
`behind this account.
`Because of the serious public health issues involved here, ASU is seeking expedited
`discovery, as well as a temporary restraining order, preliminary injunction, and permanent
`injunction to enjoin “asu_covid.parties” from using ASU’s trademarks and trade dress and to
`enjoin Facebook from continuing to provide the Instagram service to the “asu_covid.parties”
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`Case 2:20-cv-01638-DWL Document 1 Filed 08/20/20 Page 3 of 24
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`account owner, as set forth in its accompanying motion for temporary restraining order and
`preliminary injunction.
`For its Complaint, Plaintiff ASU specifically alleges:
` PARTIES
`Plaintiff is an Arizona body corporate that oversees three public universities in
`1.
`Arizona, including Arizona State University, the State of Arizona’s largest university whose
`largest campus is located in Tempe, Arizona.
`John Doe is the account holder of the Instagram social media account with the
`2.
`username “asu_covid.parties.” Upon information and belief, John Doe is intending to host
`one or more “Covid Parties” in Arizona in the coming days or weeks.
`Facebook, Inc., a Delaware corporation with its principal place of business at
`3.
`1601 Willow Road, Menlo Park CA 94025, owns and operates the Instagram social media
`platform and service.
`
`JURISDICTION AND VENUE
`This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.
`4.
`§§1331 and 1338 because it arises under the federal Lanham Act, 15 U.S.C. §1051 et seq.
` This Court has supplemental jurisdiction over ASU’s state law claims pursuant
`5.
`to 28 U.S.C. §1367 because they form part of the same case or controversy.
`This Court has personal jurisdiction over John Doe aka “asu_covid.parties” on
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`Instagram because, among other things, (a) the account holder has engaged in infringing
`activities in Arizona, including but not limited to the promotion of a “Covid Party” event in
`Tempe, Arizona using the ASU Marks; and (b) the account holder has knowingly and
`purposefully directed their activities at Arizona causing harm to ASU in Arizona.
`This Court has personal jurisdiction over Facebook because, among other things,
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`it has purposefully availed itself of the privilege of conducting business in Arizona, its actions
`giving rise to ASU’s contributory infringement claim are purposefully directed at Arizona, and
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`Case 2:20-cv-01638-DWL Document 1 Filed 08/20/20 Page 4 of 24
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`the effects of its continuing to provide its Instagram account service to “asu_covid.parties”
`despite being apprised of the infringement are knowingly caused by Facebook and felt by ASU
`in Arizona.
`8.
`
`Venue is proper in this District pursuant to 28 U.S.C. §1391(b).
`GENERAL ALLEGATIONS
`Founded in 1885, ASU became known as Arizona State University in 1958 and
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`has continuously operated under the ASU and ARIZONA STATE UNIVERSITY trademarks
`ever since then.
`10. ASU is the owner of numerous ASU, ARIZONA STATE UNIVERSITY, and
`ARIZONA STATE federal trademark registrations for a variety of different goods and
`services, including but not limited to:
`MARK
`REGISTRATION NO.
`
`GOODS/SERVICES
`
`ASU
`
`1462309
`
`
`ASU
`
`5525349
`
`Educational and
`entertainment services
`namely, offering
`undergraduate, graduate,
`post-graduate and
`continuing adult
`instruction; sponsoring
`athletic events; and
`presenting cultural,
`dramatic and musical
`entertainment events
`Making hotel reservations
`for others; hotel services;
`restaurant services; bar
`services; catering services;
`providing hotel
`accommodations; hotels;
`arranging and providing
`temporary
`accommodations for others
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`Case 2:20-cv-01638-DWL Document 1 Filed 08/20/20 Page 5 of 24
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`MARK
`
`REGISTRATION NO.
`
`GOODS/SERVICES
`
`Educational and
`entertainment services,
`provided both on and off
`campus, namely,
`producing and creating
`classroom instruction,
`seminars, field trips,
`lectures, discussions,
`individual tutoring and
`counseling, laboratories,
`films, slide shows and
`other special programs,
`both independently of and
`as a part of accredited
`graduate and
`undergraduate degree
`programs, post degree
`programs, and continuing
`adult education; presenting
`cultural, dramatic, musical,
`intellectual and
`entertaining exhibitions,
`programs and events for
`students, faculty and
`general public; planning
`and presenting intramural,
`intercollegiate and
`exhibition athletic and
`sporting events including
`football, basketball, track
`and field, gymnastics,
`baseball, wrestling,
`volleyball, badminton,
`golf, tennis, archery,
`softball, swimming and
`diving, cross-country, and
`the like
`Publications namely,
`handbooks pamplets,
`manuals, brochures,
`
`ARIZONA STATE
`UNIVERSITY
`
`1499947
`
`ARIZONA STATE
`UNIVERSITY
`
`1449597
`
`5
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`Case 2:20-cv-01638-DWL Document 1 Filed 08/20/20 Page 6 of 24
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`MARK
`
`REGISTRATION NO.
`
`GOODS/SERVICES
`
`programs, newspapers,
`schedules and other
`informative printed and
`written material
`concerning the university
`and its related activities
`Educational and
`entertainment services,
`provided both on and off
`campus, namely,
`producing and creating
`classroom instruction,
`seminars, field trips,
`lectures, discussions,
`individual tutoring and
`counseling, laboratories,
`films, slide shows and
`other special programs,
`both independently of and
`as a part of accredited
`graduate and
`undergraduate degree
`programs, post degree
`programs, and continuing
`adult education; presenting
`cultural, dramatic, musical,
`intellectual and
`entertaining exhibitions,
`programs and events for
`students, faculty and
`general public; planning
`and presenting intramural,
`intercollegiate and
`exhibition athletic and
`sporting events including
`football, basketball, track
`and field, gymnastics,
`baseball, wrestling,
`volleyball, badminton,
`golf, tennis, archery,
`
`ARIZONA STATE
`
`1499948
`
`6
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`Case 2:20-cv-01638-DWL Document 1 Filed 08/20/20 Page 7 of 24
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`MARK
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`REGISTRATION NO.
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`GOODS/SERVICES
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`softball, swimming and
`diving, cross-country, and
`the like
`(collectively, the “ASU Marks”). True and correct copies of these registrations and printouts
`from the United States Patent and Trademark Office database showing the current status and
`title of each registration are attached as Exhibit 1.
`11. ASU is also the owner of the ASU school colors trade dress, consisting of
`maroon and gold, which it has been using since at least as early as 1898. ASU’s maroon and
`gold color scheme has been used extensively on merchandise, in advertising and promotional
`materials, and on ASU’s website and social media accounts to designate ASU and its goods
`and services, such that consumers – especially Arizona consumers – readily recognize maroon
`and gold as representing ASU.
`In addition to the extensive unsolicited media coverage that ASU regularly
`12.
`receives, ASU invests substantial sums annually to advertise and promote its educational
`programs, services, athletic programs and sponsored events in a wide variety of media,
`including Instagram and other social media, to students, prospective students, alumni and the
`general public, all of which results in the wide and extensive exposure of the ASU Marks and
`maroon and gold trade dress to the public in direct association with the University. ASU
`operates its official Instagram account with the username “arizonastateuniversity” that also
`prominently features the ASU Marks and school colors trade dress.
`13. As a result of its longstanding use and promotion of the ASU Marks, these marks
`have become famous in Arizona and extremely well known and well regarded throughout the
`United States and the world.
`14. More than 48,600 students applied as incoming first-year students to ASU for
`the fall 2019 semester. ASU accepted 85% of student applicants in fall 2019 and welcomed
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`Case 2:20-cv-01638-DWL Document 1 Filed 08/20/20 Page 8 of 24
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`its largest ever class of 13,168 first year students. In total, almost 120,000 students enrolled
`at ASU in the fall of 2019. Total enrollment has continued to increase year over year,
`exceeding 100,000 students each year since the fall of 2017.
`15. U.S. News & World Report rates 98 undergraduate and graduate programs at
`ASU among the top 50 in the country, including 64 programs in the top 25 and 22 programs
`in the top 10. ASU has held the No. 1 ranking for innovation five years in a row.
`16. ASU is one of Arizona's largest employers with more than 17,000 employees.
`In 2018, approximately 250,000 ASU graduates worked in Arizona.
`17.
`18.
`In Fiscal Year 2019, the university generated an economic impact of nearly $4
`billion on the state’s gross product and 49,278 jobs.
`19. At the close of the 2019 fiscal year, more than 101,500 individual, corporate and
`foundation supporters had donated to ASU. ASU received a record-breaking $413.7 million
`in philanthropic support from these donors throughout Arizona and the world in 2019 for its
`academic programs, research and initiatives.
`20. ASU has a rich and prominent history in athletics, and has used the ASU Marks
`prominently to identify its athletics program. Many of ASU’s athletic teams are NCAA
`Division 1 and their games are nationally televised. ASU’s teams have won at least 143
`national titles, including 24 NCAA championships, and over 60 Pac 10/12 championships.
`Arizona State athletes have won at least 382 individual national titles. See Exhibit 2 (lists of
`Arizona State team and individual national champions). Plaintiff was named the No. 1 college
`athletic program in the U.S. by Sports Illustrated in 2007-2008. See Exhibit 3 (article
`published July 16, 2008).
`21. ASU plans, holds, sponsors, and promotes numerous events each year on its
`campuses and within the surrounding communities, including but not limited to events for
`incoming and returning students.
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`Case 2:20-cv-01638-DWL Document 1 Filed 08/20/20 Page 9 of 24
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`its website
`on
`page
`events
`an
`regularly maintains
`22. ASU
`(https://asuevents.asu.edu/) to promote certain of these events. In the current Covid-19
`environment, all events not directly related to the educational or research mission of the
`university have been canceled.
`The “asu_covid.parties” infringement
`23. On or about July 19, 2020, defendant John Doe, whose true identity and location
`are currently unknown, created an Instagram account with the username “asu_covid.parties”
`and posted the following message:
`
`
`
`In addition to using the ASU mark as the first part of the account username
`“asu_covid.parties,” the John Doe defendant included the ARIZONA STATE UNIVERSITY
`mark immediately below the username on the post, an ASU logo within the body of the
`message, and formatted the post in ASU’s maroon and gold school color trade dress. As
`posted, the message falsely appears to originate from ASU or an account associated with ASU.
`True and correct copies of relevant pages and posts from the “asu_covid.parties” Instagram
`account are attached collectively as Exhibit 4.
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`Case 2:20-cv-01638-DWL Document 1 Filed 08/20/20 Page 10 of 24
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`24. As shown below, the username and account profile misleadingly suggest that
`this account is associated with ASU, even though it is not:
`
`The profile uses the heading “ASU Coronavirus Parties” and categorizes itself as an “Event
`Planner” “THROWING HUGE PARTIES AT ASU.”
`25. On or about July 20, 2020, the account began promoting “our first party” which
`it named “Hoax-19,” as depicted below:
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`The following day, July 21, 2020, “asu_covid.parties” posted another message
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`claiming “COVID-19 is a fat hoax,” as shown below:
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`Case 2:20-cv-01638-DWL Document 1 Filed 08/20/20 Page 11 of 24
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`Thereafter, “asu_covid.parties” posted another message, again including the
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`ARIZONA STATE UNIVERSITY mark immediately below the username and claiming that
`“We have partnered with an Israeli company to distribute hydrochloroquine! All Profits of the
`party will go to helping people in other countries get hydrochloroquine to treat COVID-19!”
`A true and correct copy of this post, which indicates the commercial nature of the advertised
`“Hoax-19” party and falsely asserts a partnership between ASU or an ASU related entity and
`an Israeli company identified in the comments as Teva Pharmaceuticals to distribute
`hydrochloroquine, a highly controversial drug, appears below:
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`Case 2:20-cv-01638-DWL Document 1 Filed 08/20/20 Page 12 of 24
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`28. Other posts by “asu_covid.parties” encourage against wearing masks, which
`directly contradicts and undermines and interferes with the actual health related message,
`consistent with the local law that mandates wearing of masks at this time, and that ASU is
`attempting to provide to its students and the community:
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`Case 2:20-cv-01638-DWL Document 1 Filed 08/20/20 Page 13 of 24
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`29. As a function of the Instagram platform, every Instagram post may be viewed
`not only by those who follow the account on which the post has first been published, but every
`post also can be shared (and thus further distributed) by anyone through a variety of means,
`including without limitation, by a sending a direct message to another user on Instagram, by
`sharing it to a Facebook account, by sending it via Facebook messenger, by tweeting the post
`on Twitter, by sending the post via an e-mail message, and by copying and pasting a hyperlink
`to the post in any other medium.
`30. As a result, the unauthorized use of the ASU Marks and trade dress in connection
`with the “asu_covid.parties” username and posts are likely to cause confusion as to whether
`ASU is affiliated with, endorses, and/or sponsors this Instagram account, its messaging that
`could result in dangerous public health consequences if followed by others, and the “Hoax-
`19” covid party that is being promoted through this account.
`In fact, on July 24, 2020, the individual owner of the Twitter account “teach0r”
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`claimed he would be stopping his alumni membership because “ASU having COVID parties
`and claiming it’s a hoax?!”:
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`Case 2:20-cv-01638-DWL Document 1 Filed 08/20/20 Page 14 of 24
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`“asu_covid.parties” False and Offensive Statements About ASU
`In addition to the instances of infringement of the ASU Marks and trade dress,
`32.
`the John Doe defendant has engaged in a series of offensive and false statements about ASU.
`The account has posted objectively false statements and information about ASU,
`33.
`including, for example, the following post in which it claims that the account owner has “won
`the battle in court” and that ASU has been ordered to pay its legal fees plus $500,000 in
`damages:
`
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`34. No such lawsuit or claim or judgment for damages exists.
`If that were not enough, in several posts the owner of this account portrays ASU
`35.
`and its leadership as Nazis, referring to ASU’s President Crow as Führer Crow and comparing
`ASU’s mask requirement to forcing Jews to wear a yellow Star of David.
`36. Upon information and belief, these false and offensive posts are calculated to
`injure ASU’s reputation and the goodwill associated with the famous ASU Marks.
`Facebook/Instagram’s Contributory Infringement
`Facebook provides its Instagram social media platform and service to the John
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`Doe defendant for the “asu_covid.parties” Instagram account.
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`Case 2:20-cv-01638-DWL Document 1 Filed 08/20/20 Page 15 of 24
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`In offering the Instagram service, Facebook has implemented a robust set of
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`terms of use, policies and community guidelines governing the use of that service, including
`ones that are directly related to the COVID pandemic. Among other things, the Instagram
`terms of use provide as follows:
`• Fostering a positive, inclusive, and safe environment.
`We develop and use tools and offer resources to our community members that help to
`make their experiences positive and inclusive, including when we think they might
`need help. We also have teams and systems that work to combat abuse and violations
`of our Terms and policies, as well as harmful and deceptive behavior.
`
`• How You Can't Use Instagram. Providing a safe and open Service for a broad
`community requires that we all do our part.
`
`• You can't impersonate others or provide inaccurate information.
`You don't have to disclose your identity on Instagram, but you must provide us with
`accurate and up to date information (including registration information). Also, you
`may not impersonate someone you aren't, and you can't create an account for someone
`else unless you have their express permission.
`
`• You can't do anything unlawful, misleading, or fraudulent or for an illegal or
`unauthorized purpose.
`
`• You can't violate (or help or encourage others to violate) these Terms or our
`policies, including in particular the Instagram Community
`Guidelines, Instagram Platform Policy, and Music Guidelines.
`
`• Permission to use your username, profile picture, and information about your
`relationships and actions with accounts, ads, and sponsored content.
`You give us permission to show your username, profile picture, and information about
`your actions (such as likes) or relationships (such as follows) next to or in connection
`with accounts, ads, offers, and other sponsored content that you follow or engage with
`that are displayed on Facebook Products, without any compensation to you.
`
`Additional Rights We Retain
`• If you select a username or similar identifier for your account, we may change it if we
`believe it is appropriate or necessary (for example, if it infringes someone's
`intellectual property or impersonates another user).
`
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`Case 2:20-cv-01638-DWL Document 1 Filed 08/20/20 Page 16 of 24
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`A true and correct copy of the current Instagram Terms of Use are attached as Exhibit
`5.
`
`Instagram’s Community Guidelines, among other things, proclaim Instagram’s
`39.
`desire to “protect people from harmful content” to “remove content that has the potential to
`contribute to real-world harm” and reiterate the right and ability of Facebook to monitor and
`control the content posted on the Instagram services:
`Community Guidelines
`COVID-19: Community Guidelines Updates and Protections: As people around the world
`confront this unprecedented public health emergency, we want to make sure that our
`Community Guidelines protect people from harmful content and new types of abuse related
`to COVID-19. We’re working to remove content that has the potential to contribute to real-
`world harm, including through our policies prohibiting coordination of harm, sale of
`medical masks and related goods, hate speech, bullying and harassment and misinformation
`that contributes to the risk of imminent violence or physical harm. As the situation evolves,
`we continue to look at content on the platform, assess speech trends, and engage with
`experts, and will provide additional policy guidance when appropriate to keep the members
`of our community safe during this crisis.
`
`• We created the Community Guidelines so you can help us foster and protect this
`amazing community. By using Instagram, you agree to these guidelines and
`our Terms of Use. We’re committed to these guidelines and we hope you are too.
`Overstepping these boundaries may result in deleted content, disabled accounts, or
`other restrictions.
`
`• You don’t have to use your real name on Instagram, but we do require Instagram
`users to provide us with accurate and up to date information. Don't impersonate others
`and don't create accounts for the purpose of violating our guidelines or misleading
`others.
`
`• Respect other members of the Instagram community.
`We want to foster a positive, diverse community. We remove content that
`contains credible threats or hate speech, content that targets private individuals
`to degrade or shame them, personal information meant to blackmail or harass
`someone, and repeated unwanted messages.
`
`• Serious threats of harm to public and personal safety aren't allowed. This includes
`specific threats of physical harm as well as threats of theft, vandalism, and other
`
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`Case 2:20-cv-01638-DWL Document 1 Filed 08/20/20 Page 17 of 24
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`financial harm. We carefully review reports of threats and consider many things when
`determining whether a threat is credible.
`
`• Each of us is an important part of the Instagram community. If you see something that
`you think may violate our guidelines, please help us by using our built-in reporting
`option. We have a global team that reviews these reports and works as quickly as
`possible to remove content that doesn’t meet our guidelines. Even if you or someone
`you know doesn’t have an Instagram account, you can still file a report. When you
`complete the report, try to provide as much information as possible, such as links,
`usernames, and descriptions of the content, so we can find and review it quickly. We
`may remove entire posts if either the imagery or associated captions violate our
`guidelines.
`
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`A true and correct copy of the current Instagram Community Guidelines are attached as
`
`Exhibit 6.
`
`The Instagram terms of use and community guidelines demonstrate that
`40.
`Facebook retains substantial control over the Instagram service and an ability to monitor and
`remove infringing and other harmful content.
`41. On August 12, 2020, undersigned counsel on behalf of ASU submitted a
`trademark infringement report identifying the federally registered ASU Marks as being
`infringed by the “asu_covid.parties” account. A true and correct copy of the report is attached
`as Exhibit 7.
`42. On August 14, 2020, Instagram responded that “the reported party appears to be
`using your trademark to refer to or comment on your goods and services” and that it would not
`take any action regarding this account. A true and correct copy of Instagram’s response is
`attached as Exhibit 8. As shown in paragraphs 21-26 above, Instagram’s response
`mischaracterized the account’s use of the ASU Marks because neither the account profile nor
`any of the specifically referenced posts refer to or comment on any of ASU’s goods or services.
`That same day, undersigned counsel responded to Instagram highlighting the
`43.
`specific examples of infringement. Furthermore, he pointed out Instagram’s own Community
`
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`Case 2:20-cv-01638-DWL Document 1 Filed 08/20/20 Page 18 of 24
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`Guidelines, which Instagram claims is intended to “protect people from harmful content and
`new types of abuse related to Covid-19,” and to prohibit “misinformation that contributes to
`the risk of . . . physical harm,” as well has hate speech. A true and correct copy of that
`submission is attached as Exhibit 9.
`44. Despite these specific examples of the infringement of the ASU Marks and
`violations of Instagram’s own terms of use and community guidelines, Instagram responded
`on August 17, 2020 that it would not act on the report to remove or modify any aspect of the
`“asu_covid.parties” account. A true and correct copy of Instagram’s response is attached as
`Exhibit 10.
`to
`service
`Instagram
`its
`to provide
`Instead, Facebook continues
`45.
`“asu_covid.parties” which account is being used to infringe ASU’s rights and in violation of
`the Instagram terms of use and community guidelines. As such, Facebook is contributing to
`the ongoing infringement being committed by “asu_covid.parties.”
`Count One
`(Trademark Infringement – 15 U.S.C. §1114 –
`as to the “asu_covid.parties” account owner)
`
`46. ASU incorporates the allegations in paragraphs 1- 45 as if fully set forth.
`47. Describing itself as an “Event Planner” in its Instagram profile, the account
`owner has used the ASU Marks in commerce within its username and its Instagram posts to
`promote what it calls a “Hoax-19” covid party, the profits from which it claims will be used
`to acquire hydrochloroquine to treat Covid-19.
`The posts promoting this party are likely to cause confusion as to ASU’s
`48.
`affiliation, endorsement, and/or sponsorship of the event, and the messages associated with
`the event, especially where such posts are separately and independently viewed, shared, and/or
`retransmitted by others from the Instagram service.
`
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`Case 2:20-cv-01638-DWL Document 1 Filed 08/20/20 Page 19 of 24
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`These posts do not describe, refer to, or comment upon any genuine events or
`49.
`other services being offered by ASU.
` ASU has not authorized the use of the ASU Marks in connection with the
`50.
`“asu_covid.parties” Instagram account.
`51. ASU have been damaged and will continue to be irreparably harmed by these
`and other such posts unless they are enjoined.
`52. Upon information and belief, the “asu_covid.parties” account owner has
`infringed upon the ASU marks willfully and deliberately and acted with intent to cause
`confusion.
`
`Count Two
`(False Designation of Origin and False Advertising – 15 U.S.C. §1125 – as to the
`“asu_covid.parties” account owner)
`
`53. ASU incorporates the allegations in paragraphs 1- 52 as if fully set forth.
`In connection with the promotion of the “Hoax-19” party event, the
`54.
`“asu_covid.parties” account owner has used the ASU Marks, school colors trade dress, and
`other false or misleading descriptions and/or representations of fact that are likely to cause
`confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of
`the “asu_covid.parties” account with ASU, or as to the origin, sponsorship, or approval of the
`Hoax-19 party event and related messaging by ASU.
`55. Upon information and belief, in connection with its commercial promotion of
`the “Hoax-19” party event, the “asu_covid.parties” account owner has misrepresented the
`nature, characteristics, qualities, or geographic origin of his or her services and/or commercial
`activities, including without limitation, by claiming that the party will be held at a consulate
`in Tempe, Arizona, which does not exist, and by falsely claiming the existence of a partnership
`with Teva Pharmaceuticals to distribute hydrochoroquine to people for treatment of Covid-19.
`
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`Case 2:20-cv-01638-DWL Document 1 Filed 08/20/20 Page 20 of 24
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`56. ASU have been damaged and will continue to be irreparably harmed by these
`and other such posts unless they are enjoined.
`57. Upon information and belief, the “asu_covid.parties” has acted willfully and
`deliberately and with intent to cause harm to ASU.
`Count Three
`(Contributory Infringement as to Facebook)
`
`58. ASU incorporates the allegations in paragraphs 1- 57 as if fully set forth.
`59. By reason of the trademark infringement reports submitted by ASU’s counsel,
`Facebook has actual knowledge of the infringement and unauthorized use of the ASU Marks
`and school color trade dress by the “asu_covid.parties” Instagram account.
`