Courts Losing Patience With Clearly Bogus Trademark Claims; Dismissing Them Early

from the good-for-them dept

Eric Goldman has a post about a district court (Eastern District, NY) dismissing a trademark claim against the site PissedConsumer, by a company that was upset about what people were saying about it on the site. Of course, that’s a pretty clear abuse of trademark law, which isn’t about letting trademark holders block any usage — especially not reviews or criticism. Instead, trademark law is supposed to be about protecting consumers against confusion over products and services for sale. That is, it’s about stopping Bob’s Cola from pretending to be Coca Cola — not necessarily because it protects Coca Cola, but because it protects the consumer doing the buying.

In a case like this — which we’ve seen all too often — Devere Group got upset about what people were saying about them on PissedCustomer, and tried to pretend that was a trademark violation. Similar cases tend to get thrown out eventually, but what struck Goldman as interesting about this is that it got tossed out early over a lack of consumer confusion at the “motion to dismiss” stage. At that point, the court is supposed to assume that everything the plaintiff is saying is true (later stages of the case can explore if that’s true). So, to throw out the case at this stage is really early. As Goldman notes:

Running through a truncated likelihood of consumer confusion mutli-factor analysis, the court says PissedConsumer isn’t deVere’s competitor, there’s no chance PissedConsumer will “bridge the gap” to become a competitor, deVere didn’t allege bad faith and deVere didn’t allege actual consumer confusion. The court bypasses the remaining factors, something an appeals court probably won’t do. Instead, the court says that judicial precedent has held that gripe sites don’t create consumer confusion.

Goldman notes that even if this is a good result (having a court dump an obviously bogus lawsuit at the earliest possible point), he expects an appeals court to overturn this for happening too early. However, in an update, he also highlights a few more cases pointed out by Rebecca Tushnet of courts doing something similar:

Rebecca sent some other recent examples of trademark claims failing on a motion to dismiss, including The Hangover II case, Forest River v. Heartland RV and Architectural Mailboxes v. Epoch.

While it may be slightly procedurally questionable, I’m wondering if this shows that courts are very, very aware that companies are seeking to abuse trademark law these days and they’re having none of it. Combined with some similar early dismissals in copyright trolling cases, and it seems like judges are showing little patience for companies trying to abuse IP laws to silence others.

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Comments on “Courts Losing Patience With Clearly Bogus Trademark Claims; Dismissing Them Early”

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Anonymous Coward says:

Exhausting and impoverishing litigants

[Goldman] expects an appeals court to overturn this for happening too early.

One view of the courts is that their purpose is to exhaust and impoverish litigants, while holding out some forlorn hope to both combatants.

In theory, this reduces the odds of social violence?it channels aggression into enriching the pockets of lawyers. As opposed to, say, hiring hitmen. Gunbattles in the streets.

peter says:

procedurally questionable?

Not sure I agree with your conclusion. I think the court looked at the evidence presented and, even taking into account the presumption in favor of the plaintiff, found there was no actual trademark dispute in law. That is exactly why this early motion process exists. No questionable procedure here.

Wise Man says:

The Federal High Court in Australia ruled in April, 2012 that Google was a publisher of misleading ads and was not merely a conduit. Google can no longer hide behind its algorithm. But Mike Masnick and Eric Goldman failed to report this world-altering decision. Talk about prejudice and concealment! Google is about to become history!

Wise Man says:

Google ruled publisher of sponsored links ads by Australia High Court

The Federal High Court of Australia, in April 2012, overturned a lower court decision and ruled that Google is not merely a conduit, but a publisher of misleading sponsored links ads. This is a world changing decision. Google is headed for the exit door! Why didn’t the illustrious Eric Goldman report this decision? He reported the prior decision in November, 2011 which has now been overturned in April, 2012. Yet he is mute on the overturning of the same decision he earlier reported on. Is this the come uppance and exposure of techie lawyers and false reporting? Eric Goldman can join Google in the trash heap!

Anonymous Coward says:

Exhausting and impoverishing litigants

Actually, I can assure you that such is no longer the case. The legal professions have, at least somewhat, evolved in the past 10 years or so. Judges are sick and tired of this bullshit, and are much more willing to throw a case out for stupidity then they used to be. Quite frankly, they don’t want to waste their time dealing with self-important morons who don’t know how to respect them, and most of the plaintiffs in these cases are exactly that!

Anonymous Coward says:


There’s all sorts of penalties that can happen for this, for the corporation, attorneys, AND law firm! On top of that, New York State judges have really been cracking down on this sort of thing over the past few years, and are becoming ESPECIALLY pissed off with the way these laws have been abused. At this time, NY’s the LAST place you want to try something like this if you don’t have a legitimate case!

Anonymous Coward says:

Google ruled publisher of sponsored links ads by Australia High Court

Australian law is only binding in AUSTRALIA. Same goes for Australian court rulings. Given that I’m currently following a defamation lawsuit filed by an Australian against an American (which the Australian is pretty much guaranteed to win, given the sheer mountain of evidence), I brushed up on the logistics, and it is VERY difficult to enforce a court ruling across multiple sovereign nations.

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