Ariz. Bd. of Regents v. Doe

• Decision Date: 17 August 2021
• Docket Number: CV-20-01638-PHX-DWL
• Citation: 555 F.Supp.3d 805
• Parties: ARIZONA BOARD OF REGENTS, Plaintiff, v. John DOE, Defendant.
• Court: U.S. District Court — District of Arizona

555 F.Supp.3d 805

ARIZONA BOARD OF REGENTS, Plaintiff,

v.John DOE, Defendant.

No. CV-20-01638-PHX-DWL

United States District Court, D. Arizona.

Signed August 17, 2021

As Amended August 18, 2021

Glenn S. Bacal, Sean David Garrison, Bacal & Garrison Law Group, Scottsdale, AZ, for Plaintiff.

John Doe, Pro Se.

AMENDED ORDER

Dominic W. Lanza, United States District Judge

This is an unusual case. On one side is a major public university that seeks to use our nation's trademark laws in novel ways in an effort to combat the COVID-19 pandemic. On the other side is a deeply unsympathetic John Doe defendant ("Doe") who posted a series of vulgarity-filled messages on Instagram in an attempt to persuade college students to attend maskless COVID-19 parties during the peak of the first wave of the pandemic, whose answer was stricken for litigation misconduct, who stopped participating in this action after his answer was stricken, and whose identify was never discovered during subsequent proceedings. All of this has culminated in the plaintiff, the Arizona Board of Regents ("ABOR"), filing a motion for default judgment that seeks the entry of a permanent injunction against Doe. (Doc. 33.) As discussed below, although ABOR's motivations for bringing this lawsuit are understandable, ABOR has not established that Doe's challenged conduct (however odious it may be) implicates the trademark doctrines identified in ABOR's complaint. Accordingly, ABOR's motion is denied and this action is dismissed.

BACKGROUND

I. Underlying Factual Allegations

The facts set forth below are derived from ABOR's complaint. (Doc. 1.) Because Doe has defaulted, ABOR's alleged facts are assumed true, except facts as to damages. Geddes v. United Fin. Grp. , 559 F.2d 557, 560 (9th Cir. 1977).

A. ASU's Marks, Trade Dress, And Instagram Account

Arizona State University ("ASU"), which was founded under a different name in 1885, has continuously operated under the "ASU" and "ARIZONA STATE UNIVERSITY" trademarks since 1958. (Doc. 1 ¶ 9.) ASU owns "numerous ASU, ARIZONA STATE UNIVERSITY, and ARIZONA STATE federal trademark registrations for a variety of different goods and services." (Id. ¶ 10.)

ASU also owns "the ASU school colors trade dress, consisting of maroon and gold, which it has been using since at least as early as 1898." (Id. ¶ 11.) "ASU's maroon and gold color scheme has been used extensively on merchandise, in advertising and promotional materials, and on ASU's website and social media accounts to designate ASU and its goods and services, such that consumers—especially Arizona consumers—readily recognize maroon and gold as representing ASU." (Id. ) ASU "invests substantial sums annually" to achieve "wide and extensive exposure of the ASU Marks and maroon and gold trade dress to the public in direct association with the University." (Id. ¶ 12.)

ASU also operates an official Instagram account with the username "arizonastateuniversity." (Id. ) The account "prominently features the ASU Marks and school colors trade dress." (Id. )

B. Doe's Instagram Posts

On or about July 19, 2020, Doe (whose true identity and location are unknown) created an Instagram account under the username "asu_covid.parties." (Id. ¶ 23.) Directly below the username, Doe identified his location as "Arizona State University." (Id. ) In the profile associated with this account, Doe identified his full name as "ASU Coronavirus Parties," identified his title as "Event Planner," and then provided the following blurb: " ‘COVID-19 Parties because they're during this pandemic era’ Not a contest to catch COVID. THROWING HUGE PARTIES AT ASU. Follow before we go private." (Id. ¶ 24.)

Also on July 19, 2020, Doe posted the first message on the "asu_covid.parties" account. (Id. ¶ 23.) It provided as follows:

(Id. ) As the complaint notes, this post included "the ASU logo within the body of the message" and was formatted "in ASU's maroon and gold color trade dress." (Id. )

At some unspecified time after he created this post, Doe wrote a comment in the public comment bar that appears next to the post. (Id. ) The comment provided as follows: "Those of you coming back to Phoenix. We about to get fucking lit." (Id. )

On July 20, 2020, Doe posted his second message on the "asu_covid.parties" account. (Id. ¶ 25.) Unlike the first message, this message was not formatted in maroon and gold (it was set against a black background, with neon pink and yellow text) and did not include the ASU logo. (Id. ) Its text provided as follows: "OUR FIRST PARTY WILL BE CALLED HOAX-19 BECAUSE THE IDEA THAT COVID IS ONLY RAMPANT IN AMERICA COMPARED TO OTHER COUNTRIES IS A HOAX! COME TO HOAX-19. POSTING ADDY SOON!" (Id. )

Doe proceeded to post a series of additional messages on the "asu_covid.parties" account. (Doc. 1-4 at 2-21.) Although the complaint only discusses some of those messages, more are provided in an attachment to the complaint. (Id. ) Notably, none of the later messages prominently featured the colors of maroon and gold and only one displayed the ASU logo. (Id. ) The text of each subsequent message¹ is as follows:

• Message Three: "I just spoke to the Vice-Consul of the Consulate of the Republic of Belarus. The consul couldn't make it so I only spoke with the Vice Consul in person. They are both excited to host us. They are both awesome accomplished guys. We would like to thank them for letting us throw a party on consulate grounds so the party can't get shut down by the police. The party will take place on the first Saturday of the semester." (Doc. 1-4 at 2, 5.)

• Message Four: "For security purposes, the consulate has asked us to prohibit masks so we can identify people. Also the drinking age in Belarus is 18 [emoji of Belorussian flag] since we will be on Belarus soil while in the consulate." (Doc. 1-4 at 2, 6.)

• Message Five: "We will party. We do not care what you snowflakes say. COVID-19 is a fat hoax." (Doc. 1 ¶ 26; Doc. 1-4 at 2, 7.)

• Message Six: In the sixth message, in lieu of drafting his own text, Doe provided what appears to be a picture of an article from a newspaper entitled The State Press. (Doc. 1-4 at 2, 8.) The headline of the article is "University plans to punish partying on and off campus." (Id. ) The text of the article begins (before being cut off): "In response to questions about an Instagram page promoting ‘COVID parties,’ the University said it will not tolerate behavior that disregards health protocols." (Id. ) In a lengthy comment appearing next to this post, Doe wrote the following:

They are trying to slander this account. They don't report the threats people have made to purposely come to the party with COVID .... I gave a fake consulate so there is no political backlash for said country. Our company will not name the consulate our party will be at. Just the address when the time comes. CDC Guidelines, Arizona jurisdiction and ASU on campus rules do not apply to foreign soil. We will be violating nothing. ASU will not be able to punish you. There will be security at the party. EXPRESS YOUR FREEDOM. LET'S PARTY. FIRST SATURDAY OF 2020 FALL SEMESTER. (These parties are hosted for students to have fun like how a normal frat party would work. These parties are not designed to disregard public health protocols because they will not be public. These parties will be like parties if COVID never existed. There will be a list where you can RSVP in advance) Prohibiting masks is for the safety of everyone at parties. We do not want people committing crimes because they feel empowered by anonymity. We don't think COVID itself was a hoax. We believe the idea that COVID was especially bad in the United States is a hoax.... Our company has an excellent insurance policy. Anything broken in the consulate will be replaced. We will pay the medical bills of any of the Consulate staff who catch COVID-19 within 14 days of the party. Partygoers, however, will have to sign a waiver before entry. We will not release the names of people who sign waivers to the University under any circumstance.

(Id. at 8.)

• Message Seven: This message included two different statements, set off from each other. One provided: "For people telling me that I'm responsible for all the people who die from COVID at our parties. That means the guy who ate a bat in Wuhan or the Chinese Government (however you think the virus started) has the greatest kill count of us all." The other provided: "You're not pissed at those people?!" (Doc. 1-4 at 2, 9.)

• Message Eight: "ASU being a public institution that receives state funding cannot legally suspend students for off campus partying. You are protected by the 1st Amendment of the constitution of the United States of America. Your right to peaceably assemble is being violated by ASU." (Doc. 1-4 at 2, 10-11.)

• Message Nine: "As a CA in a dorm, I will not snitch on anyone who parties off campus or even has dorm parties. It is not my job to get you in trouble. It is my job to be there when you need me and to make sure college can be enjoyable for everyone. I hope other CAs can pledge to this at ASU." (Doc. 1-4 at 2, 12.)

• Message Ten: "Due to increasing concerns regarding security from the Consulate, please bring your school ID. Undercover police are not allowed into a consulate without explicit permission under the Vienna Convention on Diplomatic Relations. ASU Faculty are not allowed on the premises. Only students. The party has been registered as a protest with the city. If ASU takes any action against the attendees, it is a 1st amendment violation." (Doc. 1-4 at 2, 13.)

• Message Eleven: "We have partnered with an Israeli company to distribute hydrochloroquine! All Profits of the party will go to helping people in other countries get hydrochloroquine to treat COVID-19!" (Doc. 1 ¶ 27; Doc. 1-4 at 2, 14.) Doe also wrote the following comment in the public comment bar that appears next to this post: "Thank you to our friends from Israel! We have partnered with Teva Pharmaceutical." (Id. )

• Message Twelve...