Investment Bank Says Criticism Is Trademark Infringement; Gets Misplaced Injunction Against Web Forum

from the not-good dept

So many companies (and individuals) get up in arms over a bit of criticism, assuming that anything they don't like must be illegal. On top of that, they regularly blame the owners of the websites where that criticism occurs, rather than whoever actually created the criticism. Usually the courts see through this stuff, but sometimes companies are able to get around all of that with some quick lawyering. In a particularly egregious example, the investment bank Houlihan Smith got upset at the websites 800notes.com and Whocallsme.com, both run by Julia Forte as forums where people can discuss telemarketing practices (we've pointed out how Forte has been fighting other misguided legal attacks in the past as well). As with many companies that find people criticizing themselves on Forte's website, Houlihan Smith demanded that she remove comments. She responded by pointing out that company representatives are free to respond to the complaints in the comments.

Instead, it appears that Houlihan Smith went straight to court... and got a temporary restraining order against Forte that prohibits people from posting comments -- even if they're factual -- about Houlihan Smith to Forte's websites. So how did they get such a temporary restraining order when pretty much all case law notes that Forte is protected by Section 230? Well, it looks like they're claiming that the critical comments (and there were lots of them) weren't just defamatory (the usual claim) but were trademark infringement -- which, by way of judicial accident is not covered by Section 230. But people posting their opinions or factual information about a company cannot be trademark infringement. The company also claims a violation of the "right of publicity," because some employees are named. Of course, "right of publicity" is supposed to be used to prevent you from using someone's name or likeness in an advertising context. Someone accurately claiming that "so-and-so called me" is not a violation of anyone's right of publicity. Furthermore, the company apparently only gave Forte 90 minutes of notice via email that it was going to court (800 miles from where she lives) to get the restraining order.

Totally blocking a website from allowing people to express their opinions and criticisms of a company's telemarketing practices seems like a blatant violation of the First Amendment.

Either way, it seems like Houlihan Smith and its lawyers haven't realized a basic fact about the internet: if you try to stifle free speech that you don't like, it only draws a hell of a lot more attention to that speech. Perhaps Houlihan Smith would have been better off responding to the criticism, rather than using questionable legal claims to try to silence an entire forum.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Anonymous Coward, May 5th, 2010 @ 4:10am

    And today's entrant in the Barbara Streisand Effect contest is....Houlihan Smith! Take a bow, guys, you're going to be famous for the next fifteen minutes in ways you never imagined possible!

     

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

  2.  
    identicon
    Anonymous Coward, May 5th, 2010 @ 4:44am

    Houlihan Smith

    They should change their name to Hoover, because they suck.

     

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

  3.  
    identicon
    abc gum, May 5th, 2010 @ 4:52am

    Thank you for pointing out these sites, I would not have known about them othewise.

    Cautionary note, be careful about calling back as some numbers are to a pay service. It is irritating to get one of these "one ring" calls at two in the morning, but do not call back unless you are willing to be charged for the call.

     

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

  4.  
    icon
    Martin Dykes (profile), May 5th, 2010 @ 4:56am

    Hi ho, hi ho, to the top of google you go!

    ..for all the wrong reasons!

    Suckers.

     

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

  5.  
    identicon
    AC, May 5th, 2010 @ 6:21am

    wait for it

    ...temporary injunction against Techdirt in 3...2...1...

     

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

  6.  
    icon
    Trails (profile), May 5th, 2010 @ 6:24am

    Houlihan Smith...

    ..they eat puppies.

     

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

  7.  
    icon
    senshikaze (profile), May 5th, 2010 @ 6:39am

    Houlihan Smith...

    theyrapedandmurderedagirlin1991.

     

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

  8.  
    identicon
    Anonymous Coward, May 5th, 2010 @ 6:50am

    So ridiculous. NewEgg is a great example of how comments can work to benefit a company. A customer can write a bad review of a product and, if the company chose to remedy the situation, their response is displayed below the bad review. That simple gesture can build an enormous amount of credibility for the company, and everyone walks away happy.

     

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

  9.  
    identicon
    Pixelation, May 5th, 2010 @ 7:38am

    Smart lawyers

    Houlihan Smith seems to have smart lawyers, the kind that have people realize what idiots Houlihan Smith are. You know, the sue first ask questions later types.
    Customer service is being killed by lazy companies like this one.

     

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

  10.  
    icon
    WammerJammer (profile), May 5th, 2010 @ 7:48am

    Trademark Infringement

    My question is: When do we get to sue the Judges for being idiots and not knowing the law?

     

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

  11.  
    identicon
    Bengie, May 5th, 2010 @ 9:52am

    Re: Trademark Infringement

    I agree, we need extremely stiff penalties for judges making bad rulings.

     

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

  12.  
    identicon
    Anonymous Coward, May 5th, 2010 @ 10:04am

    Re: Trademark Infringement

    Technically judges don't need to know the law. Which makes sense when you consider most of the rulings lately.

     

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

  13.  
    identicon
    Winston, May 5th, 2010 @ 11:50am

    oh really?

    Ever heard, "opinions are like a-holes, every body's got one"? The first amendment doesn't allow an individual to make false or reckless statements. Virtually all of the people airing out their emotional baggage on Forte's site(s) are receptionists and the like, people who are paid to answer the phones. If they don't like being gatekeepers, the conclusion is obvious...
    These sites also allow comments outside their scope, which have nothing to do with telemarketing practices whatsoever. Rants from former employees with an axe to grind(who, by the way, are former for a reason) have no place in such forums.

     

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

  14.  
    identicon
    Anonymous Coward, May 5th, 2010 @ 1:17pm

    Maybe if companies observed the people's desire when they say "Add me to your do not call list", they would have fewer comments about how they continue to call people even though they are on the "do not call list" This seemed to be the case with at least a few of the cached "phone notes" entries.

    The "do not call registry" is another way to make the calls stop. The DNC rules do not give consumers a private right of action, but the Telephone Consumer Protection Act does. The Telephone Consumer Protection Act also allows you to sue telemarketers for various violations.

    You can start the process and even file a complaint here: http://www.donotcall.gov/

     

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

  15.  
    identicon
    Anonymous Coward, May 5th, 2010 @ 1:40pm

    Re: oh really?

    Im sorry, I cant hear you over the sound of my asshole.

     

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

  16.  
    identicon
    Anonymous Coward, May 5th, 2010 @ 3:08pm

    Re:

    hey brainiac, national do not call registry applies to consumer/residential #s, not businesses. if receiving business related inquiries is too much for you to handle, you probably shouldn't be in business.

     

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

  17.  
    identicon
    Anonymous Coward, May 5th, 2010 @ 3:10pm

    Re: Re: oh really?

    you probably should have that looked at...

     

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

  18.  
    icon
    nasch (profile), May 6th, 2010 @ 7:44am

    Re: oh really?

    These sites also allow comments outside their scope, which have nothing to do with telemarketing practices whatsoever. Rants from former employees with an axe to grind(who, by the way, are former for a reason) have no place in such forums.

    What does any of that have to do with this restraining order?

     

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

  19.  
    icon
    btr1701 (profile), May 6th, 2010 @ 11:26am

    Re: oh really?

    > Virtually all of the people airing out their
    > emotional baggage on Forte's site(s) are
    > receptionists and the like

    I wasn't aware there was an exception to the 1st Amendment excluding speech which constitutes "emotional baggage".

    Since the text of the Constitution itself certainly doesn't say or imply any such thing, I invite you to cite the case law which supports this heretofore unheard of exception.

     

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

  20.  
    icon
    btr1701 (profile), May 6th, 2010 @ 11:28am

    Re: oh really?

    > These sites also allow comments outside their
    > scope, which have nothing to do with telemarketing
    > practices whatsoever.

    I wasn't aware that a web site is required to restrict speech to a limited "scope" or topic in order to enjoy the protection of the 1st Amendment.

    Since the text of the Constitution itself certainly doesn't say or imply any such thing, I invite you to cite the case law which supports this heretofore unheard of requirement.

     

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

  21.  
    identicon
    Anonymous Coward, May 9th, 2010 @ 5:06am

    Companies like this don't have to care about customer service. Being a bunch of swindling crooks, telemarketers generally don't have customers. They have victims.

     

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

  22.  
    identicon
    Jack, May 22nd, 2010 @ 11:29am

    oh really??

    Winston's comment is entirely correct. The First Amendment has nothing to do with malicious and false comments posted on the web or anywhere for that matter. Houlihan was right to ask Forte to remove the false and defamatory comments from her site - why wouldn't she simply comply with its request? The postings Houlihan asked her to take down, as Winston points out, have nothing to do with the premise of her website - none of them concerned telemarketing calls, but were allegedly posted by ex-employees who were unable to keep a job - that anyone would post such idiotic comments about a former employer speaks volumes as to why they were probably fired in the first place.

     

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

  23.  
    icon
    nasch (profile), May 22nd, 2010 @ 10:39pm

    Re: oh really??

    Houlihan was right to ask Forte to remove the false and defamatory comments from her site

    Don't you have to demonstrate in court that the comments are defamatory?

    The postings Houlihan asked her to take down, as Winston points out, have nothing to do with the premise of her website - none of them concerned telemarketing calls, but were allegedly posted by ex-employees who were unable to keep a job - that anyone would post such idiotic comments about a former employer speaks volumes as to why they were probably fired in the first place.

    What in the world does any of that have to do with whether the comments were protected speech, or libel?

     

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


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