Intellectual Property Law

New Matter WINTER 2019, Volume 44, Number 4

TTAB Decisions and Developments

Jane Shay Wald

Irell & Manella LLP

Instagram Posts And The Data That’s Meta When You’re Threatened With Suit, Do Preserve It The ESI Rules Are No Joke, So You’d Bettah Not Spoliate Data: Conserve It

The Board agreed that Petitioner’s conduct in failing to preserve posts to its @busy.beauty Instagram account predating October 1, 2018 amounted to spoliation of electronically stored information ("ESI"). The Petition to Cancel was already pending by that date, when Petitioner re-launched its Instagram account and removed all prior posts. The Board reminded Petitioner that the duty to preserve evidence begins when litigation is pending or reasonably foreseeable and the record did not show that Petitioner took "any reasonable steps to preserve the information at the outset, such as by implementing a litigation hold." The Board recognized that "petitioner and its counsel were at least careless in their data preservation," and precluded Petitioner from relying on partially reconstructed ESI of the Instagram material. It found any prejudice to Respondent to be minimal under the circumstances and declined more serious sanctions. Busy Beauty, Inc. v. JPB Group, LLC, 2019 USPQ2d 338392 (TTAB 2019).

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