“Courts have considered social media comments and posts authenticated where the comments were authored by parties or witnesses.” MGA Ent. Inc. v. Harris, No. 2:20-CV-11548-NSA-GRX, 2022 WL 4596697, at *5 (C.D. Cal. July 29, 2022), reconsideration denied, No. 2:20-CV-11548-NSA-GRX, 2022 WL 4596585 (C.D. Cal. Sept. 7, 2022).

Social media posts that are unverified or unauthenticated, however, may not be materially probative of confusion. See, e.g., Stonefire, Grill, Inc. v. FGF Brands, Inc., 987 F. Supp. 2d 1023, 1054 (C.D. Cal. 2013); Caryn Mandabach Productions Ltd. v. Sadlers Brewhouse Ltd., No. 20-10220, 2021 WL 2497928, at *4 n. 9 (C.D. Cal. May 19, 2021); Arnold & Richter Cine Technik GmbH & Co, No. CV 17-7605, 2018 WL 2572853, at *4 (C.D. Cal. Apr. 4, 2018); Globefill Inc. v. Elements Spirits, Inc., No. 2:10-cv-02034, 2016 WL 8944644, at *5 (C.D. Cal. Sept. 20, 2016).

Where social media posts cannot be authenticated, it cannot be demonstrated that they are “real people.” MGA Ent., 2022 WL 4596697, at *5 (citing United States v. Browne, 834 F.3d 403 (3rd Cir. 2016) (“The authentication of social media evidence in particular presents some special challenges because of the great ease with which a social media account may be falsified or a legitimate account may be accessed by an impostor.”)).

Where the social media users are outside of the United States, their social media posts may be irrelevant to ascertaining confusion of U.S. consumers. Paco Sport, Ltd. v. Paco Rabanne Parfums, 86 F. Supp. 2d 305, 320 (S.D.N.Y. 2000) (confusion of United Kingdom and French consumers irrelevant to ascertaining confusion of U.S. consumers). “Federal courts ordinarily do not have an interest in protecting foreign consumers from confusion.” Trader Joe's Co. v. Hallatt, 835 F.3d 960, 974 (9th Cir. 2016); Caryn Mandabach Prods. Ltd, v. Sadlers Brewhouse Ltd., No. CV-20-10220-CBM-JEMx, 2021 WL 2497928, at * 4 n.9 (C.D. Cal May 19, 2021) (relevant standard is “confusion by consumers in the United States”).

The “S10” Family of Marks Relating to the “Galaxy S” Smartphone

In S10 Entertainment & Media LLC v. Samsung Electronics Co., Ltd., 2:21-cv-02443-CAS-JPRx, 2023 WL 2090703 (C.D. Cal. Feb. 14, 2023), Samsung moved in limine to exclude social media posts and messages that S10 Entertainment claimed indicated actual confusion. Those social media posts were third-party posts in response to S10's own posts on its own social media accounts. But S10 could not authenticate those posts made by third parties, and the Court ruled that those third-party social media posts were not admissible to demonstrate that those third parties were confused,

Thomas P. Howard, LLC litigates trademark cases nationwide including in Colorado.