If People Actually Hate Your Product And Say So, That's Not A Trademark Violation

from the just-so-you-know... dept

Wed, Mar 5th 2008 6:08am — Mike Masnick

Back in December, we wrote about a company that was selling a product it claimed would provide you with a facelift in an hour. Not surprisingly, many people weren't impressed with the results of such a product (which was advertised widely on TV) and wrote about it on such sites as InfomercialScams.com. The company behind the product proceeded to sue InfomercialScams claiming trademark infringement. There were just a few problems with this. First, having someone critique your product is not a trademark violation -- it's protected free speech. Second, even if it were a trademark violation, it would be a violation by the person writing the review, not the website service provider. It appears that the facelift-in-a-box company hasn't quite learned that lesson as it's now also threatening yet another site that has negative reviews of the product. That site has responded by pointing out that the original lawsuit appears to be a misuse of trademark law, and then also countersues claiming that the company broke the site's terms of service. The countersuit seems like a stretch from a legal standpoint (and, even if the terms of service are violated, it's not clear that it's a matter that raises to the level of a lawsuit), but it's good to see yet another site fighting back against an abuse of trademark law.

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Filed Under: critique, trademark

24 Comments

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Anonymous Coward, 5 Mar 2008 @ 6:37am

Fist er, I mean First or F1r5t
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SilverSliver, 5 Mar 2008 @ 7:06am

First
First to use a name :)
These are the frivilous lawsuits that should be thrown out of court, and the company fined for wasting the courts tim.
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Anonymous Coward, 5 Mar 2008 @ 7:10am

FIRST!!!
Fisrt to be the third! or am I the second...? I'm confused!
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Anonymous Coward, 5 Mar 2008 @ 7:42am

Verizon - SUCKS
AT&T - SUCKS
HP - SUCKS
DELL - SUCKS
And many more -

Sue ME!
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- Lawyer for these companies, 5 Mar 2008 @ 8:25am
  
  Re:
  I would have sued you. But you, being an Anonymous coward, didn't provide your name.
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  - Danny, 5 Mar 2008 @ 9:12am
    
    Re: Re:
    pssst
    
    Just sue Techdirt to get their name and then sue them. Problem is techdirt will probably sue me and then I'll sue you...
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Overcast, 5 Mar 2008 @ 7:45am

Just makes you wonder why they are so sensitive about it....

Most other companies I know, just shrug it off.
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- Four More Years, 5 Mar 2008 @ 8:24am
  
  Re:
  Just makes you wonder why they are so sensitive about it....
  
  Most other companies I know, just shrug it off.
  
  They are sensitive about it because it's 3 am, and they can't sleep because they have hot flashes, or something else. DON'T LAUNCH THE NUKES HILLARY!
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Anonymous Coward, 5 Mar 2008 @ 7:48am

RE: SilverSliver
"These are the frivilous lawsuits that should be thrown out of court, and the company fined for wasting the courts tim."

Better yet, discorporate the company. Destroy it utterly.

Too many companies simply put court fines in the "expenses" side of their balance sheet and keep doing what they were doing before.

Fines work to deter the behavior of individuals when they cause financial ruin, fines typically don't work on corporations with much deeper pockets.
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- Anonymous Coward, 5 Mar 2008 @ 8:06am
  
  Re: RE: SilverSliver
  Alternatively, cut the problem off at source - punish lawyers who knowingly bring frivolous lawsuits, then see how many are willing to "yes man" their employer's madness :)
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chris (profile), 5 Mar 2008 @ 7:59am

have a little compassion
they are selling crap on infomercials. as we all know, everything sold on an infomercial is a scam, the products are crap, and the target market is morons. thanks to the availability of information on the web, the pool of salable morons is shrinking.

it's hard enough to find morons to scam in the middle of the night without the internets exposing their secrets all over the place. cut these guys a little slack... they're just trying to protect their god-given right to lie to people for profit.

besides, trademark is pretty much the only legal tool they have. "our crap doesn't actually work" doesn't hold much weight as a trade secret.
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Shuryno, 5 Mar 2008 @ 8:06am

I don't know if it's the fact that the medias are covering more the lawsuits for corporate images and trademarks, but I can't believe how much it seems to be out of control. Everybody's suing anyone for anything.

All the resources and money wasted instead of being invested in r&d. It feels like there's really something wrong with the way businesses are run.

I'm sure there's legitimate cases, but I'm pretty sure there's a lot of bogus SCO's like cases. I don't know, not being a specialist in the matter may affect my comprehension on the subject.

Strange world we live in...
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Shuryno, 5 Mar 2008 @ 8:10am

Oh, BTW, I do understand this case is really the mother of all bogus cases, it's just this made me questions about just another lawsuit ...

Are lawyers trying to take over the world or something? ;)
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bmac (profile), 5 Mar 2008 @ 8:14am

Misuse of Trademark
Slightly off-topic, but in the ballpark:

The Church of $cientology also uses trademark infringement claims to pull auctions from eBay for E-Meters (the $25 worth of plastic and electronics that is really just a wheatstone bridge and skin galvanometer) that the Church sells for $5500, but that they don't want any ex/non-$cientologist to be able to sell/buy.

What makes this outright abuse of trademark law is that the Cof$ allows auctions of E-Meters on eBay if the seller is a current $cientologist, and if they promise to sell it only to another $cientologist.

www.xenu.net
www.enturbulation.org
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Put your money where your mouthpiece is?, 5 Mar 2008 @ 8:32am

i think you're on to something...hold the lawyers accountable for bringing frivolous lawsuits. the "buck" should, perhaps, stop there.
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- MH, 5 Mar 2008 @ 9:24am
  
  Re:
  Um...the courts can and they often do. But many of these lawsuits are brought because the CLIENT wants them. An attorney's first obligation is to their client. Knowing a bit about Trademark Law, depending on the context of the "free speech", if used in a commercial way (having a commercial website link), some courts might say TM infringement. And if not=summary judgment and it's tossed anyway.
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  - Mr. Fix it, 5 Mar 2008 @ 9:46am
    
    Re: Re:
    to my knowledge (but im not lawyer) an attorneys job is to recommend and inform his/her client on what they can/ should do.
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    - Anonymous Coward, 5 Mar 2008 @ 10:31am
      
      Re: Re: Re:
      And just how often have you been successful getting your PHB to do the smart thing?
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      - Law, 5 Mar 2008 @ 1:24pm
        
        Re: Re: Re: Re:
        Not bloody very. Anyone who tells their client the strait truth gets fired, and replaced with one of us who WILL compromise morals. It's an unfair market.
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MadJo (profile), 5 Mar 2008 @ 8:32am

A deliberate Streisand effect?
Perhaps this company is actually hoping for a Streisand effect?
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Chronno S. Trigger, 5 Mar 2008 @ 8:49am

ha
When I started reading this post all I could think of was Facelift-in-a-can. Then I got to the facelift-in-a-box part and laughed my ass off.

How can people possibly think that a product like that could work? I take that back. People drink their own urine for youth.
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Mr. Fix it, 5 Mar 2008 @ 8:59am

I am surprised companies didn't start copyrighting "X product sucks" then started suing who ever criticized said product.
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laserlipo, 25 Apr 2009 @ 2:43am

hello............all
I think so Computer science professor Matt Blaze critiques a recent New Yorker profile of Michael McConnell, the man who is leading the Bush administration's charge for more warrantless wiretapping powers.......thank
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ewr44, 23 May 2009 @ 3:04am

444
China printing industry developed this years, who can tell us? China based plastic injection molding services with low costs and supeior quality Steel and aluminum scaffolding for construction is a very useful tool.
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