Is Writing A Critical Review Of A Piece Of Software Trademark Infringement?

from the one-would-hope-not dept

Fri, May 25th 2007 3:37am — Mike Masnick

Greg Beck writes "Public Citizen late yesterday filed a motion to dismiss a lawsuit in Florida by two affiliated infomercial companies that are attempting to shut down negative reviews of their day trading software on the website InfomercialScams.com. They are claiming that running a website where consumers can post reviews of their products constitutes trademark infringement and a variety of other wrongs, and are seeking triple damages and attorneys' fees against the site's owner. In its motion to dismiss, Public Citizen argues that the Arizona-based website operator is not subject to jurisdiction in Florida, that the websites are protected by the First Amendment, that posting reviews is not trademark infringement, and that the Communications Decency Act protects a website owner from liability for what users post on the site." Once again, it looks like companies are trying to misuse intellectual property laws to prevent legal free speech.

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25 Comments

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Galaki, 25 May 2007 @ 3:54am

I wonder which is more appropriate,
LoL or WTF?
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- Wolfger, 25 May 2007 @ 5:59am
  
  Re: I wonder which is more appropriate,
  LOL && WTF
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dorpus, 25 May 2007 @ 3:59am

Depends
Do we know the "review" is really a private citizen, or a slanderer hired by a competitor?
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- The infamous Joe, 25 May 2007 @ 4:24am
  
  Re: Depends
  It doesn't depend at all on who wrote it.
  
  You can easily go to the website mentioned above and read the reviews. (It's at the top of the home page, in giant text, highlighted a lovely yellow color) It's more than on review of more than one product-- but even *that* doesn't matter. What matters is that they are suing the website owner for things other people left on his web site.
  
  Could it be slander from a competitor? Who can tell? That doesn't change the fact that they're going after the wrong person.
  
  But, now a whole lot more people are going to know about the bad reviews of their (apparently shitty) product-- as I've never heard of the site or the product until now.
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  - dorpus, 25 May 2007 @ 5:53am
    
    Re: Re: Depends
    So, it's easy for slanderers to set up an "impartial" web site and make false claims about a product, using guises of different posters. Doesn't it have the foolish masses such as yourself believing whatever "consumers" say?
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    - ehrichweiss, 25 May 2007 @ 7:24am
      
      Re: Re: Re: Depends
      sure it's easy to do that and it's easy to get sued for *slander* for doing so. Big deal.
      
      Seeing as how the next time some cool gadget comes out and you'll go flocking to a website to see the reviews, you dorpass will see YOU are also part of the "foolish masses", whether it's listening to paid reviewers who haven't lost any money on the product, or consumers who have.
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- ehrichweiss, 25 May 2007 @ 7:20am
  
  Re: Depends
  Doesn't matter in the least in a TRADEMARK case. Slander would be a different case altogether. That seems pretty obvious but then again I realize who I'm responding to.
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inc, 25 May 2007 @ 4:45am

I don't think you can be held liable for your opinion anyway. These are the stupid antics that cause all those warning on product like, "don't use your hair dryer in the bath tub". Website owners might as well put up notice that post constitute s the opinion of the user and not that of the website. Maybe reminding the artards will stem the tide of this bull choking the legal system.
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Fred Flint, 25 May 2007 @ 5:10am

Florida - A Haven For Fraud Artists?
I guess because of the good weather(?) and the easy laws governing the practice, Florida has been the home of crooked telemarketers and other scam artists for a very long time. Hell, a Bush was their governor when George W. Bush won(?) an election there in 2000. That should tell you something.

It's odd that out of 50 states, the one state that was key to electing G.W. Bush happened to be Florida, neh?

In the past the scammers have had lots of questionable tactics, like hiring hackers to bring down web pages, back in the early Internet days when they could get away with such crap.

They also hired shills to hype their non-existent products, contests or get-rich-quick schemes on anti-fraud web pages, looking to victimize people who had already proved themselves to be suckers.

Those poor people would visit an anti-fraud web page, looking for help and in the forums they would find scumbags telling them oh yeah, 'that one' was a scam but if you really want to get rich instantly, visit 'our honest web pages' and give us all your money!

They would also form their own anti-fraud associations, which all the fraud artists would finance and they would put up web pages where their own 'companies' got gold stars for being so honest and so lucrative, you couldn't help but get rich if you just gave them your retirement savings or your kid's college fund, the money you saved for that hip operation or whatever other money you happened to have laying around.

They specialized in scamming old people, who have an old-time belief in the truth, justice and honor. What suckers, huh?

I'd sure hate to give offense to these scumbags but it's my opinion they are still operating out of Florida after all these years, still making millions stealing from the naive and the elderly and also in my humble opinion, this 'investment software' and these idiot lawsuits are just a logical extension of their past practices.

It would be too bad if these assholes roasted in Hell, don't you think? In any case, I'd wager their lawsuits are specious at best.
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- Wizard Prang, 25 May 2007 @ 7:03am
  
  How do they sleep at night?
  It's odd that out of 50 states, the one state that was key to electing G.W. Bush happened to be Florida, neh?
  
  And fours years later it was Ohio. Your point?
  
  The president is far from perfect, but I get the impression that some people would blame him for the weather if they could. I doubt that there would be less scammers around if Gore or Kerry had won.
  
  It's funny that those who claim that Bush "Stole the election" seven years ago are conspicuously silent about Kennedy doing the same thing twenty years before. I wonder why?
  
  Back on point, it's true that Florida seems to attract an unusual amount of scum, but this is nothing new; the land speculations of 1928 and 1929 are at least partly credited with the Crash of '29.
  
  Separating retirees from their life-savings is, sadly, a multi-billion-dollar business. I wonder how these people sleep at night.
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  - Anonymous Coward, 25 May 2007 @ 8:05am
    
    Re: How do they sleep at night?
    It's funny that those who claim that Bush "Stole the election" seven years ago are conspicuously silent about Kennedy doing the same thing twenty years before. I wonder why?
    
    Kennedy stole the election 20 years before Bush? Gee, if TED Kennedy had won the Presidency in 1980 (2000 - 20 = 1980, right?), I'm sure the country would be much different now!
    
    As for John Kennedy stealing the election in 1960, there are plenty of people who say that Nixon was cheating himself, and that's the real reason he didn't protest the results. I wasn't around back then, but considering Nixon's later actions, it wouldn't surprise me.
    
    As for the real subject, I've seen parts of infomercials for both these products and figured they weren't worth the CD's the software is loaded onto. I hope the judge throws this lawsuit out instantly.
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  - Yaweh, 26 May 2007 @ 5:16am
    
    Re: How do they sleep at night?
    It's odd that out of 50 states, the one state that was key to electing G.W. Bush happened to be Florida, neh?
    
    And fours years later it was Ohio. Your point?
    
    That comment was just an interesting aside with only a tenuous connection to the original post. Still, thanks for diving into it, apropos of almost nothing!
    
    Most people will admit it was a little strange that all the poll irregularities, hanging chads, disenfranchised voters etcetera all happened in the one state where GW's brother happened to be the governor. The odds were 50 to 1 against it.
    
    So far as I know, Jeb Bush wasn't governor of Ohio in 2004 and Ohio didn't experience significant and generally unexplained irregularities. So what's your point? I didn't say scammers were caused by Bush and I didn't say there would be fewer scammers around if Gore or Kerry had won. I guess some people see what they want to see.
    
    Also, what does an assassinated president have to do with anything at all on this particular page?
    
    Nevermind! I don't much care and anyway, it has nothing to do with this particular topic.
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Grunkalunka, 25 May 2007 @ 5:22am

IPRED2, sucks
That's one of the reasons I don't like IPRED2, the 'criminalize IP infringement' EU law.

It included trademark infringement as an IP infringement:

"Member States shall ensure that all intentional infringements of an intellectual property right on a commercial scale, and attempting, aiding or abetting and inciting such infringements, are treated as criminal offences."

The intention was to limit it to counterfeiting but the wording is broad enough to take down, for example, a commercial website publishing bad reviews of Pepsi.
Intentional? Yes, Commercial? Yes, Infringement? Yes.
Hence criminal.

'Infringement' should have been split between copyright and trademarks, and a 'deception' clause included in trademarks.

To be a counterfeit trademark suitable for a criminal prosecution, the intention should be to deceive! It will be one of those laws used to intimidate and silence bad reviews of products.

So a counterfeit levi's factory would come under this, but use of the word Levi's in discussions of crappy jeans made in sweatshops in Indonesia, would not, even if it comes from a commercial site, even if it's published in a commercially released book or documentry.

What do they mean 'attempting' to commit a trademark violation! How can you set out to violate a trademark and fail?
I'm loving it? Just Do it? Rip burn mix? It's trivial to violate a trademark, so failure to infringe a trademark makes no sense!

What do they mean 'abetting' a trademark violation is a criminal offence??? What exactly constitutes abetting??

That's the problem when you try to lump different commercial rights under a misleading name 'intellectual property', you end up with worthless crud like this.
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James (profile), 25 May 2007 @ 5:43am

Meta Tags
I went ot he website and read the letter sent by the accusers attorney. If in fact they are meta tagging their website with the trademarked name in order to drive search engine ttraffic to their complaint site, the accuser may have a valid arguement. It is protected speech to write a negative review, but Playboy.com could have an issue with me using playboy in a meta tag on my site to get traffice from people looking for playboy.
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Overcast, 25 May 2007 @ 5:44am

It's getting to the point where everything is a copyright infringement. Which is ok too, I guess - it'll make it pretty much impossible to enforce at this rate.

Unless we become a more Orwellian society - which we seem to be heading quickly down that road anyway.
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- Anonymous Coward, 25 May 2007 @ 12:15pm
  
  Re:
  It's getting to the point where everything is a copyright infringement. Which is ok too, I guess - it'll make it pretty much impossible to enforce at this rate.
  Nah, that's what selective enforcement is for. Just make everything illegal and then use selective enforcement. It's much easier that way.
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Ben, 25 May 2007 @ 5:59am

Striesand effect in play
I never heard of infomercialscams.com -- but I'm going there now!
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GoblinJuice, 25 May 2007 @ 6:00am

o_O
Flordia - America's Dick!
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ReallyEvilCanine, 25 May 2007 @ 6:08am

Trademark is not Copyright
Trademarks exist as consumer protection first and foremost. They protect their owners only to the extent that someone else can't trade off their good name. Copyright deals with use, trademark deals with confusion and fraud.
The META tag exists to provide information about the page. Playboy's own Keywords metatag is content="Sex, Playboy Models, Playmates, Playboy Magazine, Nude Women" (neither Penthouse nor Hustler use any Keywords tags anymore). As long as the words are relevant to the page there's no misuse, and there's clearly no confusion.
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Andrew W, 25 May 2007 @ 6:10am

You can't slander a product
Just to be clear, you can't slander a product. Slander specifically has to do with a individual's reputation; moreover, slander is limited to something spoken, not written.
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Andrew W, 25 May 2007 @ 6:12am

Oh, and...
...it also has to be false. Of the three criteria, this case doesn't fit any of them.
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Anonymous Coward, 25 May 2007 @ 6:33am

I see a lot of posts regarding copyright violations, Bush (huh?), but very little relavant regarding trademark infringement, which was the title of this article.

Wouldn't trademark infringement require taking a trademarked brandname, logo, or other and using it as if it were your own? From what I can tell, no one did that. No one ever said, "Hey come buy my Crappy Product(tm)"m
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SM, 25 May 2007 @ 6:35am

wtf
Daytrading software? That's soooooo 1999.
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Amethyst, 25 May 2007 @ 9:18am

Copyright infringement would be hacking that software and selling the same code under a different name, not simply reviewing the product. What's next, telling people they can't blog about their PCs? Sheesh.
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Bob, 25 May 2007 @ 10:16am

Web User opinions...
... are worth the paper they are printed on. I have seen so many people at company review sites that are clearly company people. They try to say how they are such a good company. This is often used to mislead others when there are a lot of negative feedback against the company. So regardless of who rights these things, no one can be trusted. Pretty much the same as any anonymous website posting. BTW my name isn't Bob (or is it).
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