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.