September 26, 2023

WallStreetBets Makes the Wrong Bet

Our last post was about who owns a social media account: the company whose products are featured or the individual in the role associated with that account. This week we have another case at the intersection of social media and intellectual property. At issue here is who owns a trademark: the user who first created it or the social media platform (in this case, Reddit) where the mark is first used? 

In early-2012, Jamie Rogozinski launched a subreddit on Reddit called “r/WallStreetBets,” where users could share stock tips and other financial advice. Rogozinski was its first moderator. By early-2020, r/WallStreetBets had grown to more than a million subscribers and Rogozinski published a book titled WallStreetBets: How Boomers Made the World’s Biggest Casino for Millennials. Then, the pandemic happened and the subreddit exploded in popularity. Suddenly, WallStreetBets was a very valuable property.

On March 24, 2020, Rogozinski filed an application with the United States Patent and Trademark Office (“USPTO”) to register the mark WallStreetBets. Two weeks later Reddit notified Rogozinski that it had temporarily suspended his account because, in violation of Reddit’s terms of service, he had “attempted to monetize the community.” Subsequently, Reddit filed its own application to trademark WallStreetBets and sought to have the USPTO block Rogozinski from asserting a trademark in WallStreetBets. 

Rogozinski sued Reddit. He claimed, among other things, ownership of the trademark and that Reddit was infringing on his mark. The heart of his argument was that he owns WallStreetBets because he created the phrase and it is associated with him. Reddit moved to dismiss the complaint and, on July 11, 2023, U.S. District Judge Maxine Chesney granted Reddit’s motion. 

The court’s decision was based on the fact that the test for trademark ownership is “priority of use.” However, use alone isn’t enough. Rather, the party claiming ownership has to show that it was the first to use the mark in connection with the sale of goods or services. 

Here, while Rogozinski created WallStreetBets, the Court found that Reddit, not Rogozinski, had been using the mark in commerce starting with its inception on January 31, 2012, because any content created on the site becomes a product against which Reddit sells ads. According to Judge Chesney, to own a trademark, you must be “the first to actually use the mark in the sale of goods or services,” and none of the things Rogozinkski did to grow his subreddit “constitutes a use in commerce.”

One big problem with the court’s conclusion here is it could mean that because social media platforms like Facebook, X (formerly Twitter), Instagram, and the like have become so integral to marketing products, these companies could be seen as the owners of trademarks in products offered through their platforms. I suspect future cases will need to draw a line between products or services that are part of the social media platform (i.e. the subreddit at issue here) and the products or services that are entirely separate from the social media platform.