Social Media as Evidence of Actual Confusion in Trademark Litigation: Powerful Evidence – If Properly Authenticated

While trademark infringement claims and litigation involve myriad issues and considerations, one question is truly first among equals: is the allegedly infringing mark "likely to cause confusion" with the plaintiff's mark? Put another way, will the relevant average consumers for a product or service likely be confused about the source of a product or service or an affiliation between sources based on a defendant's use?

While a plaintiff can present consumer surveys, judicial comparison of the marks in context, and other evidence to support this foundational assertion, there is no greater proof of the likelihood of confusion than proof of actual confusion. As one court stated, "While actual confusion is not required, it is 'often considered the best evidence of likelihood of confusion.'"

Proof that consumers were, in fact, "confused" about the origin or association of two competing brands or marks has traditionally been hard to come by. Companies aren't necessarily privy to shoppers' thoughts as they travel supermarket aisles, nor are they listening to private conversations among friends about their sentiments or perspectives on the relationship between similar goods or services.

But, trademark owners can see consumers' social media posts. Not only is social media a forum where consumers express their views, but it is also a key component of modern marketing strategy. It is where companies build and strengthen their brands and directly interact with customers. As such, this online ecosystem offers ample opportunities to find or elicit the evidence needed to demonstrate actual consumer confusion – if that evidence is admissible and properly authenticated.

Social media evidence in trademark cases often consists of posts, including hashtags and handles of one or both companies or brands involved. As soon as it is identified, attorneys need to collect and preserve the evidence for future use as exhibits in filings, depositions, and even trial. It is critical that the preservation of the evidence shows the full context of the post demonstrating confusion - which may include a broader section of the profile, comments, reactions, and more that are difficult to encapsulate with a single screen shot. 

Furthermore, there can be challenges with authentication of this type of evidence. For example, as the court noted in a recent high-profile trademark infringement case against Samsung Electronics, "The authentication of social media evidence in particular presents some special challenges because of the incredible ease with which a social media account may be falsified or a legitimate account may be accessed by an impostor."

Because the plaintiff in the Samsung case could not authenticate 21 social media posts it sought to use as evidence of actual confusion, those comments were deemed inadmissible, dealing a severe blow to the plaintiff's efforts.

How Page Vault Helps Authenticate Social Media Posts Demonstrating Actual Confusion

Collecting evidence from social media accounts to use in trademark infringement litigation requires careful attention to legal, technical, and ethical considerations. Proper collection, documentation, and presentation methods are essential to ensure the evidence's integrity and admissibility in these proceedings. 

Page Vault eliminates the need for manual screenshots and time spent in presentation softwares by providing authenticated, exhibit-ready PDFs of social media evidence. Through Page Vault’s software or team of experts, legal professionals can properly and quickly collect, document, present, and  authenticate social media evidence while maintaining the chain of custody. Additionally, Page Vault can provide an affidavit for any capture made in our system, whether in our web capture software or On Demand service. Our personnel can also serve as expert witnesses to explain Page Vault's technology and storage processes, helping to further support the authentication of content captures used in litigation.

To learn more about our capabilities and how we can serve as an indispensable trademark litigation resource, contact Page Vault today.