Forget Suing Google, Now It's Craigslist That's A Target For Misplaced Lawsuit

from the no-surprise-really dept

It's been quite common for companies to sue Google when a competitor puts up an ad that references their own trademarks. This is misguided in any number of ways: first, as long as the ad itself is not confusing such that the reader (or a moron in a hurry reader) would think that the ad is from the original company rather than the competitor, there's not likely to be a trademark violation. More importantly, even if there is a trademark violation, it should not be Google's liability, since they're simply the service provider. The liability (if there is any) would be on whoever created the ad. Mostly, the courts have gotten this right -- though, sometimes they've gotten confused. Either way, those lawsuits keep getting filed.

And now, it appears, they're spreading. Dave Barnes alerts us to the news that a similar lawsuit has been filed against Craigslist. The lawsuit was originally filed in a Texas state court, but has been transferred to a federal court -- but not before the state court banned Craigslist from posting any more ads with those trademarked words. Considering that Craigslist does not pre-screen posts to its site, it's not at all clear how that's even possible. And, considering that trademarks only cover use in commerce in a specific context, it would be way too onerous to insist that Craigslist could not allow the phrases "Call First," "First Call Properties," or "Call Us First," in any context whatsoever.

Hopefully, the federal court is quick to dismiss Craigslist from the suit. Unfortunately, since trademark claims don't have a section 230 or DMCA safe harbor, it may be a little more involved than some other cases. But common sense, once again, dictates that Craigslist should not be the liable party here and should not be responsible for policing the text of posts. To make the claim even more ridiculous, since Craigslist doesn't charge for the ads in question, it's difficult to see how Craigslist could be found to have been using these words "in commerce." The lawsuit also alleges libel against Craigslist -- which should get thrown out quite quickly under section 230. It's too bad that the trademark claim might be a bit more involved.

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Once Again, Craigslist Isn't Liable For Discriminatory Posts

from the can't-sue-the-messenger dept

A little over two years ago, a civil rights group sued Craigslist, blaming the company for the fact that some of its users were posting discriminatory housing/roommate offers -- which could violate the Fair Housing Act of 1968. However, as plenty of people noted at the time, section 230 of the CDA protects Craigslist as a service provider, not a publisher, meaning that Craigslist isn't the party to sue here. The group could certainly go after the original posters for violating the law, but Craigslist is just the service provider and has no say in the content. That seemed obvious right from the beginning, but the civil rights group pushed forward and lost its case. The judge explained all of this to the lawyers... who filed an appeal anyway. The appeals court has now ruled as well, and (no surprise here) affirmed the original ruling, saying that Craigslist is a service provider, not a publisher, and therefore is not liable for discriminatory posts. As Eric Goldman points out, the ruling (again) makes this quite clear:

"Using the remarkably candid postings on craigslist, the Lawyers' Committee can identify many targets to investigate. It can dispatch testers and collect damages from any landlord or owner who engages in discrimination....It can assemble a list of names to send to the Attorney General for prosecution. But given §230(c)(1) it cannot sue the messenger just because the message reveals a third party's plan to engage in unlawful discrimination."

What will be interesting, however, is to see what happens now in a very similar lawsuit involving Roommates.com that is currently being reviewed in a different Circuit. Hopefully the court there comes to a similar conclusion and we stop getting these types of incorrectly targeted lawsuits.

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