After discovering on October 11, 2011 that their administrative rights on their Facebook page did no longer exist, the German drug maker Merck KGaA began legal action against Facebook.
The German firm has since filed a petition (1) to allow pre-action disclosure with the Supreme Court of the state of New York. Merck KGaA intends to demand details as to why Facebook will not allow them to use the “facebook.com/merk” username for their Facebook page: “Facebook is an important marketing device, the page is of great value to Merck” (2).
If any clear information had been provided about what happened, the said webpage is now used by the German firm’s US rival Merck & Co. In spite of Merck KGaA entering into an agreement with Facebook for its exclusive use in March of last year, the page on the social-networking site is filled with content related to the U.S. compagny. The Merck KGaA counsel exposes that: “Merck is considering causes of action for breach of contract, tortuous interference with prospective business advantage, and/or conversion. Merck requires pre-action disclosure from Facebook to determine the nature of the misconduct, to frame the pleadings, and to identify the proper defendant or defendants” .
This action based on an apparent takeover of a Facebook page is enlightening in two major ways. First, it confirms that social media usernames are today as important as domain names or trademarks. Second, this calls attention to a legal blur in this area: UDRP (Uniform Dispute Resolution Policy) rules don’t apply to social media URLs yet. Indeed, the decision to declare that a username would have been usurped or not will only lie on Facebook.
It is worth noting that the two Mercks became separate companies under the Treaty of Versailles, as part of Germany’s reparations after World War 1, each owning rights on the Merck’s trademark in different geographic areas.
To be continued…
(1) New York State Supreme Court, New York Country (Manhattan), Index Number Search: 11113215-2011