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.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: critique, trademark

24 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 5 Mar 2008 @ 6:37am

Fist er, I mean First or F1r5t
[ link to this | view in thread ]
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.
[ link to this | view in thread ]
Anonymous Coward, 5 Mar 2008 @ 7:10am

FIRST!!!
Fisrt to be the third! or am I the second...? I'm confused!
[ link to this | view in thread ]
Anonymous Coward, 5 Mar 2008 @ 7:42am

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

Sue ME!
[ link to this | view in thread ]
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.
[ link to this | view in thread ]
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.
[ link to this | view in thread ]
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.
[ link to this | view in thread ]
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...
[ link to this | view in thread ]
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 :)
[ link to this | view in thread ]
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? ;)
[ link to this | view in thread ]
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
[ link to this | view in thread ]
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!
[ link to this | view in thread ]
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.
[ link to this | view in thread ]
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.
[ link to this | view in thread ]
MadJo (profile), 5 Mar 2008 @ 8:32am

A deliberate Streisand effect?
Perhaps this company is actually hoping for a Streisand effect?
[ link to this | view in thread ]
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.
[ link to this | view in thread ]
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.
[ link to this | view in thread ]
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...
[ link to this | view in thread ]
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.
[ link to this | view in thread ]
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.
[ link to this | view in thread ]
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?
[ link to this | view in thread ]
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.
[ link to this | view in thread ]
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
[ link to this | view in thread ]
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.
[ link to this | view in thread ]