BOT demands name change to private facebook page threatens $25 per day fine

The BOT has asked you to "change the name of my Facebook page to The Unofficial XXX Community News and include the following disclaimer “This Facebook group is not monitored or endorsed by the Homeowners Association or its Board of Trustees. It is not a source of official information. If you need official information from the Homeowners Association, please contact the Association’s property manager. “

First, I do not see how this is any attempt to restrict your or others' free speech.

Second, this is a HOA liability issue. The BOT has a duty to minimize the risk of litigation (in particular, from defamation) and also ensure the HOA insurers do not raise an eyebrow.

Third, this has come up at this forum many times. The consensus is to do what the attorney/BOT said to do.

Fourth, for the little being asked of you (and the reasonableness of the request) I do not see how this is worth the trouble of not doing what was requested.

I agree with other responders that this isn't a hill you want to die on.

By using the community name without any sort of disclaimer, a reasonable person could think that the information on the page is official and make decisions accordingly. So you're also taking a risk.

If your page allows others to post information, this risk to you goes up. Many HOA attorneys strongly encourage boards not to allow anyone to post on official HOA resources other than the board and possibly the community manager. That because the owner of the site is legally accountable for any of the information that appears on the page. It's why sites allowing others to post info have Terms of Service agreements that are enforced. Insurers also sell "cyber insurance" to protect site owners if they're sued over some info on their site.

So... TL/DR: it's in your best interest to comply with the HOA attorney's instructions. They've done you a favor here - please recognize it as such.

It's Ok to change your FB name and put a disclaimer it's not associated with your official association. But don't stop talking!
Fines must be linked to your Declaration, be published, and be approved by your association. I doubt a fine has been approved to block your social media posts. In CA that would be illegal.
Don't worry about the name, just say it has been changed and keep posting what needs to be posted.

Thank you for your advice
But perhaps I was not clear enough because I left out the name of my community.
1- The Name was first adopted by the golfClub
2- My profile picture is of the golf course club house not the HOA clubhouse
3- The HOA profile is of the HOA clubhoue
4- The HOA page is private to the residents only the name of the page is The Official XXXX Residents Page
5- My page is XXXX Community News is also private to the residents only we have the same members.
6- There is no ambiguity

If they fine you, pay the fine "under protest" then sue them in small claims court.

Who owns the name?

Also, Google "fraud".

I agree with others, specify that the page is not the official page of the HOA and, if desired, provide a link to that page.

I understand the principal of not wanting to change it.

However, the cost, time and energy to stand on principal in this instance likely isn't worth it.

If the issue goes to court, it won't only affect you, it will affect those around you as the case is likely all you will talk about and disposable income will be going to pay attorney fees vs. taking a vacation with loved ones.

The HOA is a corporation and has been using said name before the FB page was created. The HOA has rights to that name and make sure the corporation is not
harmed by a FB page not affiliated with the corporation. The HOA has every right to demand a C&D.

People who want to opine about this stuff need to educate themselves about the laws surrounding things like trademarks, trade names, intellectual property, and the like.

I'm not an IP lawyer. I do have a couple of websites of my own, and I know that there can be legal issues if an unaffiliated page links itself to an official one. Why in the name of all that's holy is a disclaimer such a problem? It's less work and it's honest. And they help protect the owner of the websites from liability (although they need to be drafted by a lawyer with the proper wording). Digging in one's heels about this creates the impression that the owner of the Facebook page is indeed trying to mislead.

Meanwhile I recommend that the OP consult a lawyer and educate himself, because he seems determined to need one eventually. Some people just aren't happy until they learn the hard way. I've learned that you can't stop them, and the best thing to do is get away from the blast zone before it all goes sideways.

I wouldn't take the risk of having to pay legal fees or those fines. I understand it probably feels like the HOA is trying to exert too much control, but it is trying to stay ahead of liability issues.

Hopefully, JohnA26 will give us updates.

> This thread deals with a personal page that can be mistaken for an official HOA information resource
> which readers may believe they can rely upon.

How do you know this?

Bill

The OP says so. Quote from a previous post:

"2- My profile picture is of the golf course club house not the HOA clubhouse
3- The HOA profile is of the HOA clubhoue
4- The HOA page is private to the residents only the name of the page is The Official XXXX Residents Page
5- My page is XXXX Community News is also private to the residents only we have the same members.

The parts in bold especially create confusion. The OP could argue more convincingly that the page is strictly personal if he used his own photo or gave it a title indicating that it's a personal page. But both of these things specifically reference things with the community name.

Given how uninformed HOA owners can be about the legalities of this stuff, and given the presence of a golf course with the same name, is it any surprise that homeowners could be confused by this?

The only thing I find surprising is that the owner of a webpage appears to be OK with this. Most people who put up websites want to provide good information for their readers, not mislead them.

(By the by, my community sits inside a larger parcel of land that originally was subdivided and developed. The current three individual parcels all have the same name, although we're called Same Name Condominium Association, Inc. I can't tell you how much trouble we have with township officials confusing us with the other two Same Name parcels, or getting on our case if they have a beef with one of the other Same Name parcel owners. We also have several easements affecting the Same Name parcels, and trying to figure out who is supposed to be doing what is a chore. These things are confusing by nature, even without private owners putting up web pages purporting to provide Same Name Community News. If one of our owners did put up such a page, they would receive a cease-and-desist letter from our attorney. This is a normal business practice when a corporate name is involved.)

The name of the Community as used by both Facebook pages is not unique and is used as a base name by other communities Florida, the Carolinas among others.
I have been publishing for over three years I started to ask a number of questions given that a court ruling in february overturned what HOAs can do behind closed doors. I have taken issue with the manner in which the Board conducts business without direct input from the residents.They don't like what I have to say.

JohnA26, as long as you are fine with the possibility of the HOA fining you, then forward you go without changing a thing at your Facebook site.

OR you can seek actual legal advice from an attorney.

Cathy and ElleN:

1. I agree that OP should talk to a lawyer if they want to fight this matter. Regarding the specific matter of the HOA fining OP? I don't even have a comment since I know nothing about New Jersey law.

2. It seems like you're assuming that the HOA and HOA attorney are operating from a position of good faith? I'm not at all convinced that is the case. I think OP cheesed of a Board member.

3. If OP is actually attempting to use the FB page to deceive people and make them think he's running the neighborhood or that he's the official voice of the HOA, then he's screwed. But there is nothing to indicate that. It seems like OP is attempting to run an independent forum that isn't under control of the HOA. There's ostensibly nothing wrong with that. My sense is that someone on the HOA Board is experiencing criticism, and that may be the genesis of the letter to OP.

4. Also - do you guys think the HOA owns the "XXXX" name? Like: they have exclusive rights to it? That's not possible. It's possible (but unlikely) that in the past the HOA pursued a *trademark* registration for their name, and if so, that might tip the balance in their favor BUT even then it's not a Sure Win for the HOA. Even if the name *is* trademarked, the HOA doesn't necessarily have exclusive use, ref:

Apple Corps v Apple Computer:

https://en.wikipedia.org/wiki/Apple_Corps_v_Apple_Computer

And the lesser-known but much more interesting Nissan Motors v. Nissan Computer:

https://en.wikipedia.org/wiki/Nissan_Motors_v._Nissan_Computer

(I remember reading Uzi Nissan's account of it back around Y2K and he made a pretty good case for how he was the victim of junk litigation by a law firm that was merely trying to soak its corporate sponsor. Uzi did most of the work himself and won, BTW).

5. Registering the HOA as a corporation does not automagically register the name as a trademark. I believe this is true in all 50 states.

6. That the HOA attorney didn't open with an outright Cease & Desist - I'm assuming OP would have said "they sent me a C&D order" - makes me wonder if the HOA lawyer even knows what they're doing. My understanding is that a C&D is the usual opening move in these matters. This matter is complicated by being on Facebook. It's not a domain name dispute - there are a lot of name duplications out on FB, and unlike the WWW's DNS system, FB is specifically designed to accomodate duplications.

7. Trademark law is a legal specialization and it's unlikely that the HOA attorney even knows how to begin getting all legal on this. So they'll want to bring in a specialist. Hypothetically, if the HOA wins they could maybe recover court costs. But there's no guarantee that the matter will ever even make it to court, much less be decided in the HOA's favor. When push comes to shove, is the HOA willing to spend this money? In short: there are no guarantees on either side.

8. If this stuff goes to court, the main matter will be: does OP's FB page confuse or dilute the HOA's FB page? (I'm not seeing any commercial/money or intentional fraud aspect to this). Their use of a common name probably won't be the deciding factor (ref the Apple and Nissan cases above), especially if the name is not trademarked. I see that OP has responded that there are a number of other communities and FB pages that use the same name.

Also, take a peek at this "A moron in a hurry":

https://en.wikipedia.org/wiki/A_moron_in_a_hurry

and/or "Passing off":

https://en.wikipedia.org/wiki/Passing_off

These are primarily related to the UK (and since the Apple v Apple case was a huge deal worldwide, it's worth a look). Also "Unregistered trademark":

https://en.wikipedia.org/wiki/Unregistered_trademark

To try to be clear: I'm not saying any of this guarantees either OP or the HOA a win in this matter. Or, pragmatically: if this matter goes to court, it's not at all obvious who will prevail.

9. Cathy, you mentioned Disney? As it happens, I've worked with a Disney IP attorney. Via my corporate job years ago I gave them a guided tour of a virtual world where some residents were selling illicit Disney merch. *sigh* I also once worked with Newt Gingrich. I'm not proud of some of the things I've done to make a dollar.

So you're saying that Disney will sue just because someone's fansite *links* to their website? I know they'll sue over knockoff merchandise, and for copyright infringement. But just for *linking* to their site? I'd like to see a cite on that, if you've got it handy. Generally the only way people get in trouble over linking to a website is because they're somehow stealing or encapsulating or otherwise misrepresenting that website's content as their own. It's usually obvious that it's intentional fraud. Or - if you're a fansite and you're using Disney IP (images, audio, etc) on your site, The Mouse may send you a C&D. But - again - you're saying that just *linking* to that Disney site is problematic?

OP didn't go into details but it doesn't sound like they're doing any kind of fraudulent content theft - in fact, he makes a point of how his FB page uses a header image of the golf course clubhouse, which is not the HOA clubhouse. If he were using the same image / layout / color scheme as the "Official HOA" FB page - that could be a problem. But I've seen nothing to indicate that.

(FWIW, 'my' Disney attorney didn't do anything about the in-world illicit merchandise; I don't know why. I wasn't privy to their thinking after the tour).

10. To attempt to summarize: I don't believe the HOA has a sure win on this unless they've trademarked their name. I don't believe OP has a win, either, but I don't believe that the HOA has OP dead-to-rights. If OP wants to fight it, they should consult with a lawyer. But wow, what good is this forum if every freakin' question is answered with "you should talk to a lawyer"?.

I still think OP should "lean in" to it ("The Proudly Unofficial XXX Community News").

If anyone goes to the trouble of finding Uzi Nissan's story of how he successfully fought Nissan Automotive over a domain name, they'll observe that a) it's possible to fight without a lawyer but b) it's more work than one can easily imagine. Also, as a non-lawyer, Uzi screwed a few things up - I seem to recall that he accepted a phone call from the opposing counsel and unwittingly agreed to a California venue? - which was a Big Mistake. And towards the end he found a volunteer attorney who helped to fill in some of the more persnickety legal paperwork.

I admire OP's spirit. And they may decide not to fight it simply on the basis of cost. There's no shame in that.

Bill

I get my info from an IP lawyer who has said that you don't mess with The Mouse. Disney has armies of lawyers who look for shenanigans to prosecute. In addition, I can't remember what training session that this came up in, but budding web designers were told not to link to a company's website without their permission. I also am pretty sure that intentional vs. accidental/clueless won't make much difference, especially if the recipient of C&D letter digs in his heels - pretty sure that pushes it over the line to intentional.

It may be instructive to take a close look at cyber-insurance policies.

Another data point: the big tech guys, including Facebook/Meta, Twitter, and other social media sites have been fighting with our government for years over liability for what's posted on their sites. So far the tech companies have told our Congress-critters to pound sand, and they've made it stick. So the owner of a Facebook page who claims it isn't really a website as protection against liability probably won't have much success with that argument.

Anyway, the OP could find out all of this for himself if he'd talk to a lawyer. I'm very sure we don't have the whole story here, so any advice he gets from us would be general at best - and with legal disputes, general don't cut it.

Anecdote:

Some years ago I had a couple websites of my own. These involved owning the domain names, disclaimer and disclosure notices vetted by a lawyer, no commenting allowed, no ads, no "merch" available for purchase, and no affiliated social media sites or YouTube channels.

I ended up deleting the sites. I didn't want to go through all of the gyrations needed to safely run the sites, including having a lawyer on retainer, for something that was intended to be entertainment. These things became jobs, and they didn't bring in any money because I didn't allow the ads or make the junk available for purchase. If I had allowed the money-making options, they may have paid for the accountant that I needed to add to the team. And if I'd allowed the "social engagement" (ie, allowing comments or maintaining social media sites), I'd have dramatically upped the chances of being legally harassed by randos on the internet who decided that they just didn't like me and that I should be sued.

In short, the sites stopped being fun real quick. And as with owning property in a community association, people can establish a presence on the web without knowing the first thing about what they're doing. What they don't know can come back to bite them.

A note about using links on Facebook. There is a policy that when certain website links are used, your insights reach goes to zero. So if you use a link, keep an eye on your insights.

We have no links to other sites.
Thsi is a facebook page

I’ve reviewed all of the comments on this topic as well as yours and I have to agree with the others. First of all, Facebook doesn’t care what a page on its website is called – whoever sets up the page is responsible for its content, meaning that person/entity could be sued for something that’s posted there. Whether or not he/she/it would win would depend on the issues being raised and the judge.

The difference between your page and the official XXX residents is that the board monitors it, which means it set up that page some time ago. Some HOAs do this for its members, and like anything else, people can choose to read yours, the official website, or both. If the board refuses to post a comment they don't like, that person is free to go to your website and post it there – or attend a board meeting and tell everyone what they think. Just as you might choose to write your opinion on YOUR webpage. Are you suggesting your neighbors don't know the difference between a page titled "the official XXX residents" and whatever you call your website? If there's been any confusion, it would be easier to put up the disclaimer and keep it moving - let the board try to come up with something else to stop you (which they probably can't do).

And how do YOU know they’re censoring statements by certain people or everyone on a subject? Even if they were, that doesn’t stop anyone from running for a spot on the board to dump an incumbent. Issues of voter suppression HOA-style might ensue, but that's another conversation (plenty of which have been discussed on this website). Meanwhile, this letter didn't say “what you wrote on X date is dead wrong– retract it or else” or “you can’t write about Y.” A letter from an attorney isn't fun, but has anything else happened that makes you think you’re being targeted? For example, there could be a connection between something you posted followed by a sudden wave of violation letters for stuff everyone else gets away with, but you’d have to prove that.

I do agree with Cathy and Ellen's points, so you need to decide what's really important. If that's keeping the association board on its toes (and that's a great goal to have), don't let an argument over a disclaimer slow you down. If you still think you have something, remember none of us are attorneys and what may be true in your state isn’t necessarily true in ours. After all this, you may as well talk to a private attorney and see if your argument stands a chance of winning. You can always countersue the HOA and ask to be reimbursed court costs and attorney’s fees if you win. OF course, you would also run the risk of the HOA appealing – they might win or lose, but all that would take a while – are you willing to spend the money and time? Good luck in whatever you decide to do

I always recommend that an HOA Webpage not be interactive meaning no one but the BOD can post.

I only posted that because somebody suggested putting a link on your page. Sounds like all your arguments are good ones.