October 13, 2011
If you’re like me, you hadn’t heard of Timelines until you read about this lawsuit.
Apparently, though, Timelines.com has over 97,000 visits a month (whether that number represents unique visits isn’t clear).
For those of you not among the 97,000 monthly visits, Timelines is a website that allows users to record and share events, and to contribute descriptions, photos, videos, geographic locations and links.
These events can either be personal (a daughter’s first birthday), public (a presidential inauguration), or historic (a battle in the American Civil War).
In other words, Timelines does timelines.
And Facebook’s Timeline?
It’s basically just Facebook with a timeline: users will be able to post and display content in a time-based fashion, including posting to earlier points in time.
Timelines has requested a temporary restraining order (TRO) stopping Facebook from moving forward with its Timeline feature, but I’m not going to talk about its chances of success because it was already denied.
Hot Doc: Timelines Inc. v. Facebook Inc.
One of the several reasons that the judge ruled this way is because the Timelines trademark is probably “descriptive,” one of the many categories of trademarks in regards to the level of the mark’s distinctiveness, and thus the level of protection it’s entitled to.
As can probably be inferred, “descriptive” is one of the lowest levels of distinctiveness, and thus warrants very little or no protection.
Timelines’s only real hope here is that its mark has acquired secondary meaning – i.e. it is “uniquely associated with the original seller;” then, it may warrant protection.
Unfortunately for Timelines, as the court notes, the evidence just isn’t there that this is the case.
And given a name that descriptive, it would have to produce a mountain of evidence showing that when consumers think of timelines on the Internet, they think of Timelines.
That probably isn’t going to happen, making this case a relatively insignificant speed bump under the juggernaut that is Facebook, if not for a kind of strange anomaly.
One of Timelines’s grievances in its complaint is that Facebook had replaced Timelines, Inc.’s Facebook page with a redirect to Facebook’s own Timeline page.
Facebook remedied this almost immediately upon the filing of the suit, and the judge denying the TRO noted this as part of the reason for the denial.
But, he said, if “the problem does, for any reason, occur again, Timelines is free to re-file the motion.”
Since no further elaboration was given, I can only assume that the court is saying that Timelines would have a judiciable claim against Facebook if the latter decided to remove the former’s Facebook page.
Frankly, that just isn’t true.
To be sure, they can block Facebook from publishing infringing material.
Nevertheless, even if Facebook killed Timelines’s page and replaced it with its own Timeline page, until Timelines, Inc. shows Facebook to be infringing on a valid mark (at least sufficiently to justify a TRO), the courts can’t touch Facebook.
In fact, even if Facebook was found to be infringing, it could still delete Timelines’s Facebook page with few, if any, repercussions.
The court’s order here seems to stem from an assumption that Facebook is a different kind of website than every other on the Internet, and that people have some inherent right to a Facebook page.
As far as I know, there is absolutely no precedent to support this position.
So while the trademark infringement part of the case is nothing remarkable, the judge’s aforementioned suggestion will be worth following.
If it wasn’t just a fluke (which it almost certainly was), it could signal a massive legal shift in Facebook’s status.