Australian Company Files Bogus Defamation/Trademark Infringement Lawsuit Over A Nine-Year-Old Blog Post

from the as-substance-free-as-a-bag-of-imported-air dept

We've seen plenty of bogus DMCA takedowns and legal threats issued in order to silence critics. Paul Alan Levy has gotten ahold of a weird, long-delayed lawsuit [PDF] filed by an Australian financier against an unknown blogger who wrote a single critical post about him nine years ago.

There is somebody on the other side of the Pacific Ocean who has a strongly negative perspective on Nicholas Assef, the head honcho at an Australian financial services firm called Lincoln Crowne – or at least, somebody held such views nine years ago.   We know at least that much because, in 2007, an anonymous individual created a small Google blog, using the URL lincolncrowne.blogspot.com, and posted a “warning” urging people who were considering doing business with Assef and his company to do their due diligence first. And even though the blog is buried deep in the Google search results for someone entering a search using lincoln crowne as the search string (currently, it is on the tenth page of results), Assef is plainly rankled by this criticism.

How Assef came across this single post, floating in the internet backwater, is a mystery. But there it is. Before suing the Doe behind the single-post "blog," Lincoln Crowne tried suing Google for defamation in Australia, presumably to use local laws to route around Section 230 protections. It didn't work. Google briefly took down the blog post before restoring it.

Having failed in this attempt, Lincoln Crowne is now trying to sue the anonymous blogger, using a poorly-constructed lawsuit with more than a few deficiencies. It not only claims the content is defamatory, but that the defendant's URL is a violation of its trademark. It's a mess, which is somewhat surprising because the firm is being represented by lawyers who seem otherwise competent.

Levy provides more insight into the suit's multiple flaws.

The trademark claim is based on the proposition that use of the company name in the third-level domain for the blog constitutes infringement. The complaint asks the court to exercise supplemental jurisdiction over the defamation claim, which is based on the allegation that everything written in the blog is a lie (does that include “and” and “the”?). The defamation claim is a bit odd because the statute of limitations for defamation is only one year, and the suit was filed eight years after publication. And the trademark claim is even worse – the blog is simple criticism, without selling any rival products. and there is a Ninth Circuit decision on point: Bosley Medical v. Kremer (a case that I handled), saying that non-commercial gripe sites are outside the scope of the Lanham Act. And even if the site had some commercial aspect, what likelihood of confusion about source could be caused by a blog that is headlined BEWARE LINCOLN CROWNE & COMPANY and then “Warning Warning Warning - Nick Assef"?.

Those aren't the only problems. In addition to these spurious claims, the complaint also shifts targets in midstream. The defendants listed on the first page of the suit only include "Does 1-10." Out of nowhere, the lawsuit suddenly starts targeting Google.

Also odd is the fact that the default judgment order is sought against Google, which is not a party to the lawsuit and is not in default and which, in any event, could not have been sued for defamation. It is unclear whether plaintiffs have alerted Google to the fact that they are seeking an order from the judge directed at Google rather than at the anonymous blogger.

As Levy points out, this sort of thing is common in the Ninth Circuit, where many tech companies are located. Sneaky plaintiffs file against one party and then pepper their complaints with requests for default judgment against better-heeled corporations.

Not only that, but the Ninth Circuit seems to enjoy circling this particular bogus lawsuit drain -- much more so than Levy does.

I find it tiresome to have to keep going back to courts in the Ninth Circuit to make these arguments: once we win in a circuit, I prefer to preserve Public Citizen's scarce resources by moving on to other jurisdictions. But if nobody speaks up, the win becomes a dead letter and future lawyers then start citing the lower court decision in self-justification.

A bogus lawsuit -- running unopposed (as it were) -- can do just as much damage as a legitimate one. And this one is pure frivolity. Even if the long-expired statute of limitations on defamation claims is ignored, the trademark allegations are nothing for Lincoln Crowne's representation to be proud of. In order to demonstrate the "harm" a personal blog showing up 10 pages into a Google search is doing to its business, the company actually had to use "lincoln crowne blogspot" as its search terms to get anything incriminating to show up on the first page. As Levy notes, the likelihood of the average consumer adding the word "blogspot" to their search for Lincoln Crowne hovers at a steady 0%.

It wasn't until seven years after the offending post appeared that Lincoln Crowne showed any motivation to secure its own Blogspot-hosted blogs in an attempt to combat the single negative post it had come across, so it's not as if the company has faced an uphill battle against a determined blogger for nine years straight.

Either way, the likelihood of confusion is nil and the post itself -- even if considered defamatory -- isn't Google's problem (although the plaintiff would really like it to be) and dates back further than the statute of limitations can be stretched.

It's clear from the lawsuit that Lincoln Crowne is just hoping to stick Google with something by injecting wording that asks for the company to be held responsible should the actual Doe defendant fail to appear. That's not proper litigation. That's opportunism.

Filed Under: 9th circuit, australia, california, censorship, defamation, jurisdiction, nicholas assef, slapp, statute of limitations, trademark
Companies: lincoln crowne


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  • icon
    That One Guy (profile), 18 Jul 2016 @ 1:08pm

    Load pistol. Extend foot. Aim. Pull trigger.

    As always with cases like this, the fact that they are going so overboard to silence something critical of them just brings into question how bad they really are.

    A legitimately good company should feel no threat from critical reviews or comments, as they should be drowned out by positive reviews or easily addressed and shown to be incorrect or otherwise flawed. By instead doing everything they can to get rid of a critical review(or in this case site), they make themselves out to be at the very least thin-skinned and unable to take criticism in a mature fashion.

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

  • identicon
    Anonymous Coward, 18 Jul 2016 @ 1:44pm

    With a suite like this, I find the anonymous blogger much more believable the Mr. Assef. Obviously he is not someone you want to do business with unless you are 100% sure at the start that it will go well.

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

    • identicon
      Anonymous Coward, 18 Jul 2016 @ 3:55pm

      Re:

      > Obviously he is not someone you want to do business with unless you are 100% sure at the start that it will go well.

      That, my friend, is a sucker bet. If you take that bet, as sure as you stand there, you will wind up with cider in your ear.

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

  • icon
    Jigsy (profile), 18 Jul 2016 @ 1:52pm

    Aren't there any statute of limitations?

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

    • icon
      That One Guy (profile), 18 Jul 2016 @ 1:57pm

      Re:

      One year from the article, but given the attempt to slip through a judgement they can use against Google(without of course informing them of it), 'forgetting' to mention the fact that this is about eight years past the statute of limitations on the subject would seem to be par for the course with this lawsuit.

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

  • identicon
    Anonymous Coward, 18 Jul 2016 @ 4:11pm

    The Australian defamation case would have been doomed to fail because Lincoln Crowne isn't a natural person and doesn't appear to be a closely-held corporation, and so under Australian law cannot be defamed.

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

  • icon
    AC720 (profile), 18 Jul 2016 @ 4:55pm

    8 years is a long time. In Internet years, that's about a million years. I would not be at all surprised if Google no longer even had the records of who controls that blog, as it is beyond any reasonable length of time to retain such data.

    And if an IP was recorded, the provider behind that IP themselves probably no longer have records back that far.

    And even if they did, courts have held that IP is not the same as proving it was a particular person.

    So they're asking for information that probably does not exist and can't be used even if it did.

    Well OF COURSE their lawyers are going to chase this. They're getting paid by the hour and all they have to do is file motions on this one and they might even win if somebody defaults.

    Ironically, if the owner of the blog came forward and revealed themselves, I think they'd have a great grounds for a 1A defense anyway. Which means the case is hoping they DON'T come forward and that Google just cuts a check.

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

  • icon
    Ninja (profile), 19 Jul 2016 @ 5:51am

    I misread the headline and thought it was the MAFIAA suing a 9-year-old kid. Sadly I made this mistake because it could actually happen.

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

    • icon
      Krist Bussart (profile), 21 Jul 2016 @ 12:11pm

      Re:


      I misread the headline and thought it was the MAFIAA suing a 9-year-old kid. Sadly I made this mistake because it could actually happen.


      "Could happen" It has happened!

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

  • identicon
    Kronomex, 24 Jul 2016 @ 5:09pm

    How bloody petty, childish and Erdoganish!

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


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