Il post di addio sui social, indirattamente o velartamente critici verso l’ex datore di lavoro, non costitujice uso del marchio di quest’ultimo

Un allenatore di baseball, prima di sciogliere il rapporto di lavoro col college, carica cinque post su Twitter di saluto, dando ntizia della cessazione .

L’ultimo dice < “Per the threat of legal action from my former university this Twitter account will be deleted or taken over by the university. My affiliation with this account will end Monday. Thank you all again for your support.”  >

Il college lo cita azionando alcune disposizioni della legge sui segni distintivi (Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), i )

Serve però che ricorra l’ “uso nel commercio” (da noi art. 20.c.1. prima parte, cpi).

Da quanto è ivi esposto, è evidente che tale uso non ricorre.

La corte  NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION 16 settembre 2022, St. Xavier University b. Rocco Mossuto, caso, caso  No. 20-cv-05206 , pure la pensa così:

<< Next, as to the merits of the motion, Mossuto argues that he is entitled to summary judgment on SXU’s trademark infringement claim because SXU has not met the commercial use
requirement of the Lanham Act—that is, that the alleged infringement was “in connection with any
goods or services.” 15 U.S.C. § 1125(a). While the Seventh Circuit has not yet squarely opined on
this issue, the opinions of several other circuit courts are persuasive.
See Bosley, 403 F.3d at 680
(holding that plaintiff could not use the Lanham Act as a sword to silence noncompetitor
defendant’s criticism because defendant’s use of plaintiff’s trademark was not “in connection with
the sale of goods”);
Utah Lighthouse Ministry, 527 F.3d at 1053 (affirming summary judgment for
defendants where defendants’ use of plaintiff’s trademark was not in connection with any goods or
Radiance Found., Inc. v. N.A.A.C.P., 786 F.3d 316 (4th Cir. 2015) (holding that the “‘in
connection with’ language must denote a real nexus with goods or services…”);
Taubman Co. v.
, 319 F.3d 770 (6th Cir. 2003) (“If [defendant’s] use is commercial, then, and only then, do we analyze his use for a likelihood of confusion.”).

SXU responds, without support, that Mossuto’s allegedly infringing conduct satisfies the commercial use requirement because “posting information on a social media service in connection
with a trademark is commercial speech subject to the Lanham Act.” (Dkt. 69 at 5.) The Court agrees with the Tenth Circuit that not every use of the internet is commercial for purposes of the
Lanham Act.    See Utah Lighthouse Ministry, 527 F.3d at 1054. Such a holding would “greatly expand
the scope of the Lanham Act to encompass objectively noncommercial speech.”
Id. In addition,
that the Patent and Trademark Office allows registration of trademarks for the purpose of providing
information via the internet, SXU argues, is evidence that such a restriction does not exist.

A plain reading of the Lanham Act is evidence to the contrary. 15 U.S.C. § 1125(a)(1) (“Any person who,
on or in connection with any goods or services…”). SXU must show something more to connect Mossuto’s actions to goods or services sufficient to sustain a Lanham Act claim.
The undisputed evidence shows that Mossuto’s use of SXU’s trademark was not
commercial. Though SXU readily admits that Mossuto did not use the Twitter Account for any
monetary purpose, it nevertheless brings this claim under the Lanham Act for an alleged trademark
infringement that lasted a few hours. (Dkt. 73, ¶ 47–48.) The real issue seems to be that Mossuto
used the Twitter Account as a platform to criticize SXU’s reasons for terminating his employment.
Such a use is not actionable under the Lanham Act.
See Utah Lighthouse Ministry, 527 F.3d at 1053
(“In our view, the defendant… must use the mark in connection with the goods or services of a
competing producer, not merely to make a comment on the trademark owner’s goods or services.”)

Lo scontato esito imporrebbe, da noi, la condanna attorea per responsabilità aggravata ex art. 96 cpc

(notizia e link alla sentenza dal blog del prof. Eric Goldman)