Il blog del prof. Eric Goldman dà notizia di una interessante decisione di diniego di motion to dismiss in un caso di conrrenza sleale dell’ex dipendnete che passa alla concorenza.
Si tratta di Distretto del Maryland 03.03.2022, Pan 4 America c. Tito & Tita Food Truck, LLC (“Tito & Tita”), Aizar Mazariegos, and AnaCecelia Ayala, No. DLB-21-401.
In breve il dipendente passa ad altro datore di lavoro continuuando ad usare l’account Facebook del precedente (era un produttore di pane e simili, marcato <La Baguette>!!!) solo cambiandogli nome ma mantenendo molti contenuti
Interessanti sono i fatti, più che il giudizio della corte:
<<Later on April 12 and after signing the noncompete agreement, Mazariegos changed thename of the Facebook page to “Tito & TitaLangley” and replaced the address and phonenumber listed on the page. Id. ¶ 43. Due to thenature of Facebook, this change was retroactive,meaning past events and posts by La Baguettenow appeared to have been posted by “Tito & TitaLangley.” Id. ¶¶ 45-50. Despite the changes,Mazariegos pre5served some descriptions, pricesand photos of La Baguette’s products, as well asother content relating to plaintiffs’ business. Id. ¶45. Plaintiffs identify three specific content itemsstill remaining on the page that were originallyposted by La Baguette but now appear to havebeen posted by Tito & Tita: events from 2016 and2019 and a *3 post from 2018 advertising LaBaguette’s products. Id. ¶¶ 47, 49. Additionally,plaintiffs allege that “many consumer posts andresponses thereto” that predate April 12, 2020,remain under the new name, Id. ¶ 48, alongside“empty posts” where the content has been deletedbut the posting date remains, reinforcing “themisimpression that Tito & Tita . . . is merely acontinuation of or successor to the La Baguettebusiness, ” Id. ¶ 50.3
Plaintiffs fired Mazariegos on April 16 afterlearning Tito & Tita did sell baked goods incompetition with La Baguette. Id. ¶ 52. Plaintiffs2Pan 4 Am., LLC v. Tito & Tita Food Truck, LLC No. DLB-21-401 (D. Md. Mar. 3, 2022)twice requested that Mazariegos provide logininformation for the Facebook page as well as othersocial media accounts, but the informationprovided by Mazariegos did not work. Id. ¶ 53.Unable to access the Facebook page and unawareof the changes made to it by Mazariegos, plaintiffsshifted to an alternate Facebook page created byanother employee. Id. ¶ 54. This alternate page isnow the primary online platform for La Baguette,but it does not have a large following (~261followers). Id. ¶¶ 55-56.
Mazariegos registered Tito & Tita as a MarylandLLC on May 5, 2020. Id. ¶ 57. Plaintiffs allegeTito & Tita “had been operational at least as earlyas March of 2020, ” but that Ayala andMazariegos focused their full attention on thecompeting business only after their terminationfrom La Baguette. Id. Defendants retainedadministrative access to the original Facebookpage after their termination, and plaintiffs allegethey used the page to falsely advertise and pass offTito & Tita’s business and products as LaBaguette’s. Id. ¶ 59. The page allowed defendantsto intercept and divert orders while creatingconfusion among La Baguette’s customers. Id. Thepage has since advertised products that are similarto those offered by La Baguette, including apopular “Unicorn Cake” with a distinctive style.Id. ¶ 51.
Following defendants’ “hijacking” of theFacebook page, plaintiffs saw a “precipitous drop”in call-in orders. Id. ¶ 60. This coincided with theearly months of the pandemic, which *4 limitedin-store operations. Id. Plaintiffs began to suspectthe decline in their business was somehow theresult of Tito & Tita and the original Facebookpage after they received complaints fromcustomers about poor quality products that had infact been ordered from and prepared by Tito &Tita. Id. ¶ 62. Plaintiffs allege that defendants’misconduct has caused “confusion and uncertaintyin the marketplace” over the relationship between La Baguette and Tito & Tita, Id. ¶ 65, resulting in“irreparable harm to their business, theiradvantageous relationships and goodwill withtheir consumers, and their reputation in themarketplace, ” Id. ¶ 64>>
In particolare la slealtà:
<<Defendants argue that plaintiffs have not identified “any actual or affirmative” misleading statement or “any representation that was literally false or otherwise implied that ‘Tito & Tita’ was a successor or continuation of [La Baguette].” ECF 13, at 6. The Court disagrees. Plaintiffs allege that Tito & Tita used several false or misleading representations of fact.
They allege that
(i) two historic events held by La Baguette now appear to have been held by Tito & Tita, ECF 2, ¶¶ 43, 46- 47;
(ii) old posts and communications on the page and interactions with La Baguette’s followers now appear to have originated from Tito & Tita, id. ¶¶ 48-50; and
(iii) Tito & Tita has passed off its products as La Baguette’s, including by leaving “descriptions, prices, and photos of Plaintiffs’ baked good offerings . . . on the page, ” id. ¶ 45, and mimicking distinctive product offerings, id. ¶ 51.
Additionally, due to the nature of Facebook, Facebook users who followed La *7 Baguette before the name change would now appear to have followed Tito & Tita instead.
Taking these allegations as true, it follows that Tito & Tita represented it was associated with all the historic La Baguette content it failed to delete, associated with or endorsed by La Baguette as a successor, and endorsed by all La Baguette’s existing Facebook followers.
The analogous non-digital conduct would be to take a photograph of a crowd inside La Baguette with the caption “La Baguette, Christmas party 2016, ” erase “La Baguette, ” write-in “Tito & Tita, ” and keep the photograph on the wall where customers can see it. Tito & 2 3 7 4 Pan 4 Am., LLC v. Tito & Tita Food Truck, LLC No. DLB-21-401 (D. Md. Mar. 3, 2022) George & Co. LLC v. Imagination Ent. Ltd., 575 F.3d 383, 393 (4th Cir. 2009); see also Putt-Putt, LLC v. 416 Constant Friendship, LLC, 936 F.Supp.2d 648, 659 (D. Md. 2013) (stating the likelihood of confusion for purposes of a § 43(a) unfair competition claim is “similar to that for trademark infringement” and referring to the Court’s preceding analysis of the relevant factors). These factors are not equally important, “nor are they always relevant in any given case.” George & Co. LLC, 575 F.3d at 393 (quoting AnheuserBusch, Inc. v. L. & L. Wings, Inc., 962 F.2d 316, *8 320 (4th Cir. 1992)). Evidence of actual confusion is “often paramount.” Id. (quoting Lyons P’ship, L.P. v. Morris Costumes, Inc., 243 F.3d 789, 804 (4th Cir. 2001)). Tita allegedly modified content, rendering it false or misleading, then used that content to kick start its competing business>>