Court Not Impressed By Ascentive Seeking To Silence Complaints Via Trademark Law

from the no-moron-in-a-hurry dept

Paul Levy has a long and detailed post about a district court judge in New York rejecting an attempt by software maker Ascentive to force criticism offline. The company sued Opinion Corp. for comments found on its PissedConsumer website, where an awful lot of consumers appear to be... well... pissed at Ascentive. Levy's summary of Judge Leo Glasser's opinion covers the basics:
Judge Glasser ran through the “likelihood of confusion” factors (opinion pages 13 to 16) as has become de rigeur in all trademark cases even though they are ill-suited to deciding cases where the real issue is fair use (and despite Barton Beebe’s demonstration of the ways in which courts manipulate the test to justify pre-determined outcomes).  But the more important part of the opinion is its focus on whether a reasonable consumer, seeing the web pages at issue, would have any doubt about whether the pages they were reviewing were sponsored by Ascentive – and even a moron in a hurry would not be so confused (pages 16 to 20).   Ultimately, then, the issue comes down to a claim of initial interest confusion, but Judge Glasser rejected that argument (pages 20 to 28). 

Initial interest confusion is unlikely even on its own terms, both because PissedConsumer.com is not in competition with Ascentive’s web sites, and because search engines generally do not take keyword meta tags into account.  Moreover, the meta tags and title tags are used accurately in this case – they lead to pages that are about Ascentive’s products, albeit unflattering ones.  Judge Glasser also embraced later decisions that have questioned the very premises of the Ninth Circuit’s decision in its once-seminal Brookfield Communications decision, and have noted that the “harm” created by a misleading meta tag — being taken to a web site that the searcher finds unrelated to his actual search objectives — is easily remedied by clicking back to the search engine results.  Finally, Judge Glasser expressed impatience with the notion that trademark law should provide a remedy for unethical and excessive search engine optimization tactics — the search engines themselves take a dim view of being gamed, he noted, and their remedies can be much more effective than a court's.  In this instance, however, it is hard to see any impropriety in Opinion Corp.’s SEO techniques, because the complaints about Ascentive’s products are just what the average consumer might want to see when searching online for information to help decide whether to risk entrusting her credit card number to Ascentive’s billing department and her computer to Ascentive’s software.

Judge Glasser also rejected Ascentive’s contention that the display of advertising by its competitors adjacent to the critical comments violated its trademark rights (pages 28 to 32).  As on most advertising-supported web sites, advertising is placed at the discretion of the advertising service to which the space has been rented, so if Ascentive has a cause of action it would be against the advertising service. Of course, it did not sue that service because the remedy it seeks is the removal of critical comments, and the service cannot do that.
As Levy notes, it appears that this is really an attempt to use trademark law in a manner to pretend that it's defamation law -- not that the case seems likely to succeed under either type of law. Indeed, as Levy also points out, the lawyer for Ascentive, Alexis Arena, talks about intellectual property in her bio, but has herself listed as a "reputation management attorney." Of course, it's difficult to see how filing questionable trademark claims that a judge rejects pretty soundly helps your reputation.

For what it's worth, Levy does raise some questions about the way that Opinion Corp. runs its business as well, as, separate from the trademark claims, Ascentive filed a RICO claim against Opinion Corp. for apparently offering to help in getting better reviews on the site and potentially allowing Ascentive to review (and respond to) negative claims before they go up on the site. However, as the judge notes in the case, while these practices may be "troubling and perhaps unethical" it's not clear how they violate racketeering laws. And, either way, such claims are entirely separate from the bogus trademark claims. All in all this seems like a pretty comprehensive and thorough smackdown of a company trying to misuse trademark law to silence criticism.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    icon
    That Anonymous Coward (profile), Dec 21st, 2011 @ 4:07am

    Without knowing more about the "services" being offered by Opinion Corp. for paying a fee of X, it is hard to tell if they are good or evil.
    There are people who claim Yelp! is the devil and others who swear by it, and there are all of the stories a freind of a freind heard online that one time... and most of them seem to come from people who disliked the idea people gave them bad reviews.

    It is nice to see that a platform for angry consumers, yet another one IKR, is getting the attention of the companies involved. I wonder if instead of hiring a lawyer, using that money to improve the issues customers were having would have been a better use of the funds.

     

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  2.  
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    Rikuo (profile), Dec 21st, 2011 @ 4:32am

    "even a moron in a hurry would not be so confused (pages 16 to 20)."

    I love how the judge had to write four full pages explaining why a moron in a hurry wouldn't be confused.

     

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  3.  
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    The Devil's Coachman (profile), Dec 21st, 2011 @ 5:17am

    Re:

    That was for the morons.

     

    reply to this | link to this | view in thread ]

  4.  
    identicon
    Anonymous Coward, Dec 21st, 2011 @ 5:27am

    Re:

    Morons understand it fine, but he had to explain it to lawyers.

     

    reply to this | link to this | view in thread ]

  5.  
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    MAJikMARCer (profile), Dec 21st, 2011 @ 5:31am

    Customer Service

    If you have a bad product or poor customer service, fix it, don't try to silence those with complaints by trying to block their speech.

    Hey I get it, someone searches for information about your product and a complaint site comes up. It's not unreasonable to be mad about that. The thing is, search engines are not a marketing platform, though SEO people will tell you otherwise. It's a way for people to find information. Thankfully the judge, in this case, understood that: "because the complaints about Ascentive’s products are just what the average consumer might want to see when searching online for information"

    So again, why further taint your image with consumers by trying to silence one of their outlets for criticism, rather than trying to actually fix your business?

     

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  6.  
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    The Devil's Coachman (profile), Dec 21st, 2011 @ 6:04am

    Re: Re:

    I rest my case.

     

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  7.  
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    That Anonymous Coward (profile), Dec 21st, 2011 @ 6:14am

    How sad... I went to read up on the company...
    the website is returning no hits about Ascentive

     

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  8.  
    identicon
    Anonymous Coward, Dec 21st, 2011 @ 6:33am

    Re:

    Yes, but if they are offering a service to "improve your reviews" for a fee, it would seem that they would be particularly interested in cultivating the bad reviews, so that they can offer you ways to "fix" it.

    I think Ascentive went after the wrong thing first.

     

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  9.  
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    That Anonymous Coward (profile), Dec 21st, 2011 @ 6:37am

    Re:

    Oh my dear flying spaghetti monster...
    So many of the complaints on the site seem to be they didn't change the rules for me so they are evil!!!

    http://walmart.pissedconsumer.com/would-not-sell-my-child-cd-20111122276601.html

    If you want to see stuff about Ascentive...
    http://ascentive.pissedconsumer.com/

    From the complaints and the fact an AG went after them, I am guessing they might not be on the up and up...

    And just to add to the irony...
    You can request a quote to get business access to the site to reply to the complaints... and you can trust them...
    they are PayPal verified...
    http://www.pissedconsumer.com/business-solutions.html

     

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  10.  
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    That Anonymous Coward (profile), Dec 21st, 2011 @ 6:47am

    Well it seems the reputation defender lawyer might need to work on those skills...

    First google hit for ascentive speedscan
    http://www.whatsabyte.com/P1/speedscan.htm

    "We did have a short review of PC SpeedScan here and many user comments and reviews. Very colorful and negative user comments about the software I should add. Unfortunately, we were forced to remove the review and the comments for a variety of reasons.

    Apparently, Ascentive did not like the comments and we received a few nasty-grams from their lawyers. The FTC is releasing new rules about user comments and reviews that make us liable for your comments. Go figure. A lot of legal jargon but it seems that freedom of speech on the Internet is slowly coming to an end. "

    I think someone needs better legal advice.

     

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  11.  
    identicon
    Anonymous Coward, Dec 21st, 2011 @ 6:57am

    ugh

    mikey still doesn't get it.. even if it supposedly didn't hurt movie sales, that doesn't make it right or acceptable. You probably wouldn't be too thrilled if you put millions of dollars into a project that someone leaked before the release for free. But of course you have no idea what it means to invest heavily into something and then have others cavalierly steal and illegally distribute it.

     

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  12.  
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    That Anonymous Coward (profile), Dec 21st, 2011 @ 7:03am

    Re: Re:

    I think Ascentive spends to much money on SEO to pimp their products.

    Been digging around into the lawsuit they settled for spamming, and for defrauding customers.

    Their product is actually flagged by some AV products, and looking at their twitter and FB pages 99% of the posts are just links to news storys nothing about the company or issues.

    And Its hard to tell if the other site was going to make the reviews go away, or their business model is just charging them to have an official channel to respond, but they look not so good.

     

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  13.  
    icon
    That Anonymous Coward (profile), Dec 21st, 2011 @ 7:06am

    Re: ugh

    WOW Troll fail....

    Try and get them in the right freaking article.
    Don't steal ootb's schtick about putting millions into a movie.
    Try and comprehend the idea of the leak actually helping a horrible film do better at the box office, IMPROVING sales.

    -100/10

     

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  14.  
    identicon
    Jeff, Dec 21st, 2011 @ 7:56am

    Ascentive is crap

    They are well known for making software such as Finally Fast, which claimed to speed up your computer and your internet connection, but it more or less screws up your computer.

     

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  15.  
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    That Anonymous Coward (profile), Dec 21st, 2011 @ 8:00am

    Re: Ascentive is crap

    I'd never heard of them before, and much of their SEO gaming has tried to push down the bad reviews of their products and methods.

     

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  16.  
    identicon
    Anonymous Coward, Dec 21st, 2011 @ 8:01am

    The Judge had to spend that long discussing it because it wasn't as clear cut as Levy portrays.

     

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  17.  
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    John, Dec 21st, 2011 @ 8:04am

    I'm all for free speech and complaint sites, but not sure you all see what pissedconsumer actually does with trademarks. it provides a written description of the company using its trademark and the description is littered with links to third party competing products. pissed receives click through fees for each of these - all of this happens by virtue of pissed's use of the trademark for the purported purpose of providing criticism. their model is one for profit, not for free speech.

     

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  18.  
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    Jeffrey Nonken (profile), Dec 21st, 2011 @ 9:46am

    Re:

    their model is one for profit, not for free speech.

    So? There's nothing wrong with a company's business model being for profit but leveraging free speech to do so. I mean, aren't businesses supposed to make profits?

    I'm not disagreeing with your comment overall. I'm just suggesting that your final point is a bit weak. Try again?

     

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  19.  
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    Drew (profile), Dec 21st, 2011 @ 10:17am

    Re:

    The case was not about whether pissedconsumer makes money or not, or has a for profit business model; the case was about whether the information/look/feel of their site would confuse consumers into believing that pissedconsumer was Ascentive. Since any idiot, moron, or even a lawyer would not confuse pissedconsumer for Ascentive there is no Trademark claim.

    All that above aside, who clicks on embedded links throughout a paragraph?

     

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  20.  
    identicon
    john, Dec 21st, 2011 @ 1:09pm

    i think the point is that the first amendment is intended to protect non-commercial speech. if someone else's trademark is being used by someone to generate profit and not just to promote free speech, there is something wrong going on. and if people weren't clicking on embedded links, then they wouldn't be there in the first place. not to mention that if you read the original article here, there are pretty serious allegations that this company will accept money to supress critical comments. this isn't exactly "consumer reports"

     

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  21.  
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    That Anonymous Coward (profile), Dec 21st, 2011 @ 10:51pm

    Re:

    "there are pretty serious allegations that this company will accept money to supress critical comments."

    Like has been said about Yelp! and proven about the BBB.

     

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  22.  
    identicon
    Anonymous Coward, Dec 22nd, 2011 @ 1:20pm

    Re: Re:

    $120,000 to hide negative reviews and refuse to post future negative reviews is not exactly like the BBB.

     

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  23.  
    identicon
    The Truth, Dec 23rd, 2011 @ 8:21am

    RE:

    Interesting find... on their previously quoted "Business Solutions" page (http://www.pissedconsumer.com/business-solutions.html).

    "However, please be advised that PissedConsumer's service offerings do not contemplate the removal of consumer complaints which conform to our Terms of Service."

    Paul's article also includes interesting statement from them regarding ethical practices:
    http://www.citizen.org/documents/OpinionCorpEthicalPractices.pdf

    But obviously, we never know if this all can be trusted or not...

     

    reply to this | link to this | view in thread ]


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