Don't Use This Tactic
This post is the first serious post in almost two years - and I apologize to my regular readers for having taken such a long vacation. Obama doesn't have anything on me. Seriously, though, the switchover from closing down WLF | The Williams Lindberg Law Firm, PC and moving our practice to Sedgwick took more time out of my day than I anticipated. So let me give you a quick update on where things are. All of WLF's lawyers have moved on in one form or another, and I am very sad to report that Greg Granger died back in 2009. Craig Lindberg now works at FedEx, so the firm has gone back to its original namesake, WLF | The Williams Law Firm, PC. Joe McFaul and I continue to work together, and Wayne Kistner and Charles Bennett have resumed their private practices. Our staff members have likewise moved on, but Gayle Delcoure continues to work with Joe and me.
I've also been a slacker with posting my Lawyer2Lawyer podcasts, but those postings will return to weekly posts. Bob Ambrogi and I have continued to co-host that podcast, and we've been doing so for the last six years. We believe we've got the longest continuously-running podcast on the entire Internet. We started back in 2005, so let me know if you think we're wrong. In any event, if you haven't listened in awhile, it may be a good time to renew your link to the Legal Talk Network site or just download our podcast from iTunes. We just got named #1 of the "Top Ten Podcasts," and we're very proud of that award.
With that, let's get down to the business of May It Please The Court's blog posts.
As anyone who knows me would tell you, I'm a geek. A Geek of the pocket-protector, card-carrying type, complete with a capital "G." So when I saw this opinion regarding a website called pissedconsumer.com about several of my favorite subjects (trademark and the Internet), I dove in.
Here's the long and short of it: a website called pissedconsumer.com offers upset customers the opportunity to post their rants about everything from their opinions about bad customer service to bad products. Obviously, businesses are not a fan of this website, or others like it. Two businesses in particular (who were quite upset about unfavorable opinions posted by their customers) contacted pissedconsumer.com to find out what they could do to respond to those rants and satisfy their customers.
Now it gets tricky.
The owners of pissedconsumer offered these businesses ... well, let them explain it in the words the Court used:
Those terms [of the offer pissedconsumer.com made to the businesses] allegedly said: "In exchange for $2,500 per month over three years, plus an upfront fee of $30,000-a total of $120,000 - [the businesses] would receive the following services:
"(1) Notification of every review made on the [businessname].PissedConsumer webpage and a 'grace period' giving [the businesses] the ability to address negative complaints before they are publicly posted on the site;
"(2) Removal of all complaints made by commenters who refuse to allow [the businesses] to contact them to address their complaints;
"(3) PissedConsumer's posting of complaints addressed by Ascentive in a way that highlights resolution of the problem, rather than the problem itself. If this feature is in place, visitors to the webpage will only be able to see the original complaint by clicking through to it; and
"(4) Change of the title of the main landing page where consumer reviews are posted from Ascentive@PissedConsumer.com to 'Ascentive Reviews' and the ability to change text on the page describing the company and its products and services."
The businesses claimed that "offer" was really extortion, and sued. The businesses also claimed that pissedconsumer.com infringed their trademarks, and sued over those violations too, and not surprisingly asked for punitive damages, too.
Unfortunately for the businesses, the Court denied them any relief. The test for trademark infringement involves an element of consumer confusion, and the Court decided that no consumer visiting pissedconsumer.com would be confused that they were actually visiting the businesses' websites, especially given all of the negative comments there. The businesses lamely argued that consumers might think that the pissedconsumer.com website might be confused with their own Customer Relations Department, but not surprisingly, the Court didn't buy that argument, either.
The Court also decided that pissedconsumer.com wasn't defaming (actually libeling) the businesses because the rants were obviously expressions of opinion, and not expressions of factual matters. Since an opinion is not defamatory, there was no glory in that argument, either.
Now you might think that the extortion argument was a good one, but that one lost two. The Racketeer Influenced and Corrupt Organizations Act (RICO) prevents pissedconsumer.com from accepting "any benefit to influence ... selection, appraisal or criticism." As a consequence of this legal requirement, the businesses lost because "PissedConsumer does not hold itself out 'making ... criticism of commodities or services'; instead, it provides a forum for others to make such criticisms." In other words, pissedconsumer.com found all the right loopholes.
Finally, even though the Court admitted it was very troubled by what it considered to be unethical actions of pissedconsumer.com, it ruled that the website's actions are outside the law. The Court quoted Oliver Wendell Holmes' 1922 observation: "[Ethical] obligations that exist but cannot be enforced are ghosts that are seen in the law but that are elusive to the grasp."
Sometimes you just can't get what you want through the law. But there's always an alternative.
P.S. (December 17, 2011). Doctors run into the same problem: is it fact....or opinion?