Investment Bank Says Criticism Is Trademark Infringement; Gets Misplaced Injunction Against Web Forum

from the not-good dept

Wed, May 5th 2010 4:01am — Mike Masnick

So many companies (and individuals) get up in arms over a bit of criticism, assuming that anything they don't like must be illegal. On top of that, they regularly blame the owners of the websites where that criticism occurs, rather than whoever actually created the criticism. Usually the courts see through this stuff, but sometimes companies are able to get around all of that with some quick lawyering. In a particularly egregious example, the investment bank Houlihan Smith got upset at the websites 800notes.com and Whocallsme.com, both run by Julia Forte as forums where people can discuss telemarketing practices (we've pointed out how Forte has been fighting other misguided legal attacks in the past as well). As with many companies that find people criticizing themselves on Forte's website, Houlihan Smith demanded that she remove comments. She responded by pointing out that company representatives are free to respond to the complaints in the comments.

Instead, it appears that Houlihan Smith went straight to court... and got a temporary restraining order against Forte that prohibits people from posting comments -- even if they're factual -- about Houlihan Smith to Forte's websites. So how did they get such a temporary restraining order when pretty much all case law notes that Forte is protected by Section 230? Well, it looks like they're claiming that the critical comments (and there were lots of them) weren't just defamatory (the usual claim) but were trademark infringement -- which, by way of judicial accident is not covered by Section 230. But people posting their opinions or factual information about a company cannot be trademark infringement. The company also claims a violation of the "right of publicity," because some employees are named. Of course, "right of publicity" is supposed to be used to prevent you from using someone's name or likeness in an advertising context. Someone accurately claiming that "so-and-so called me" is not a violation of anyone's right of publicity. Furthermore, the company apparently only gave Forte 90 minutes of notice via email that it was going to court (800 miles from where she lives) to get the restraining order.

Totally blocking a website from allowing people to express their opinions and criticisms of a company's telemarketing practices seems like a blatant violation of the First Amendment.

Either way, it seems like Houlihan Smith and its lawyers haven't realized a basic fact about the internet: if you try to stifle free speech that you don't like, it only draws a hell of a lot more attention to that speech. Perhaps Houlihan Smith would have been better off responding to the criticism, rather than using questionable legal claims to try to silence an entire forum.

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Filed Under: defamation, forums, free speech, trademark
Companies: 800notes.com, houlihan smith

23 Comments

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Anonymous Coward, 5 May 2010 @ 4:10am

And today's entrant in the Barbara Streisand Effect contest is....Houlihan Smith! Take a bow, guys, you're going to be famous for the next fifteen minutes in ways you never imagined possible!
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Anonymous Coward, 5 May 2010 @ 4:44am

Houlihan Smith
They should change their name to Hoover, because they suck.
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abc gum, 5 May 2010 @ 4:52am

Thank you for pointing out these sites, I would not have known about them othewise.

Cautionary note, be careful about calling back as some numbers are to a pay service. It is irritating to get one of these "one ring" calls at two in the morning, but do not call back unless you are willing to be charged for the call.
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Martin Dykes (profile), 5 May 2010 @ 4:56am

Hi ho, hi ho, to the top of google you go!
..for all the wrong reasons!

Suckers.
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AC, 5 May 2010 @ 6:21am

wait for it
...temporary injunction against Techdirt in 3...2...1...
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Trails (profile), 5 May 2010 @ 6:24am

Houlihan Smith...
..they eat puppies.
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senshikaze (profile), 5 May 2010 @ 6:39am

Houlihan Smith...
theyrapedandmurderedagirlin1991.
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Anonymous Coward, 5 May 2010 @ 6:50am

So ridiculous. NewEgg is a great example of how comments can work to benefit a company. A customer can write a bad review of a product and, if the company chose to remedy the situation, their response is displayed below the bad review. That simple gesture can build an enormous amount of credibility for the company, and everyone walks away happy.
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Pixelation, 5 May 2010 @ 7:38am

Smart lawyers
Houlihan Smith seems to have smart lawyers, the kind that have people realize what idiots Houlihan Smith are. You know, the sue first ask questions later types.
Customer service is being killed by lazy companies like this one.
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WammerJammer (profile), 5 May 2010 @ 7:48am

Trademark Infringement
My question is: When do we get to sue the Judges for being idiots and not knowing the law?
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Bengie, 5 May 2010 @ 9:52am

Re: Trademark Infringement
I agree, we need extremely stiff penalties for judges making bad rulings.
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Anonymous Coward, 5 May 2010 @ 10:04am

Re: Trademark Infringement
Technically judges don't need to know the law. Which makes sense when you consider most of the rulings lately.
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Winston, 5 May 2010 @ 11:50am

oh really?
Ever heard, "opinions are like a-holes, every body's got one"? The first amendment doesn't allow an individual to make false or reckless statements. Virtually all of the people airing out their emotional baggage on Forte's site(s) are receptionists and the like, people who are paid to answer the phones. If they don't like being gatekeepers, the conclusion is obvious...
These sites also allow comments outside their scope, which have nothing to do with telemarketing practices whatsoever. Rants from former employees with an axe to grind(who, by the way, are former for a reason) have no place in such forums.
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Anonymous Coward, 5 May 2010 @ 1:17pm

Maybe if companies observed the people's desire when they say "Add me to your do not call list", they would have fewer comments about how they continue to call people even though they are on the "do not call list" This seemed to be the case with at least a few of the cached "phone notes" entries.

The "do not call registry" is another way to make the calls stop. The DNC rules do not give consumers a private right of action, but the Telephone Consumer Protection Act does. The Telephone Consumer Protection Act also allows you to sue telemarketers for various violations.

You can start the process and even file a complaint here: http://www.donotcall.gov/
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Anonymous Coward, 5 May 2010 @ 1:40pm

Re: oh really?
Im sorry, I cant hear you over the sound of my asshole.
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Anonymous Coward, 5 May 2010 @ 3:08pm

Re:
hey brainiac, national do not call registry applies to consumer/residential #s, not businesses. if receiving business related inquiries is too much for you to handle, you probably shouldn't be in business.
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Anonymous Coward, 5 May 2010 @ 3:10pm

Re: Re: oh really?
you probably should have that looked at...
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nasch (profile), 6 May 2010 @ 7:44am

Re: oh really?
These sites also allow comments outside their scope, which have nothing to do with telemarketing practices whatsoever. Rants from former employees with an axe to grind(who, by the way, are former for a reason) have no place in such forums.

What does any of that have to do with this restraining order?
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btr1701 (profile), 6 May 2010 @ 11:26am

Re: oh really?
> Virtually all of the people airing out their
> emotional baggage on Forte's site(s) are
> receptionists and the like

I wasn't aware there was an exception to the 1st Amendment excluding speech which constitutes "emotional baggage".

Since the text of the Constitution itself certainly doesn't say or imply any such thing, I invite you to cite the case law which supports this heretofore unheard of exception.
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btr1701 (profile), 6 May 2010 @ 11:28am

Re: oh really?
> These sites also allow comments outside their
> scope, which have nothing to do with telemarketing
> practices whatsoever.

I wasn't aware that a web site is required to restrict speech to a limited "scope" or topic in order to enjoy the protection of the 1st Amendment.

Since the text of the Constitution itself certainly doesn't say or imply any such thing, I invite you to cite the case law which supports this heretofore unheard of requirement.
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Anonymous Coward, 9 May 2010 @ 5:06am

Companies like this don't have to care about customer service. Being a bunch of swindling crooks, telemarketers generally don't have customers. They have victims.
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Jack, 22 May 2010 @ 11:29am

oh really??
Winston's comment is entirely correct. The First Amendment has nothing to do with malicious and false comments posted on the web or anywhere for that matter. Houlihan was right to ask Forte to remove the false and defamatory comments from her site - why wouldn't she simply comply with its request? The postings Houlihan asked her to take down, as Winston points out, have nothing to do with the premise of her website - none of them concerned telemarketing calls, but were allegedly posted by ex-employees who were unable to keep a job - that anyone would post such idiotic comments about a former employer speaks volumes as to why they were probably fired in the first place.
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nasch (profile), 22 May 2010 @ 10:39pm

Re: oh really??
Houlihan was right to ask Forte to remove the false and defamatory comments from her site

Don't you have to demonstrate in court that the comments are defamatory?

The postings Houlihan asked her to take down, as Winston points out, have nothing to do with the premise of her website - none of them concerned telemarketing calls, but were allegedly posted by ex-employees who were unable to keep a job - that anyone would post such idiotic comments about a former employer speaks volumes as to why they were probably fired in the first place.

What in the world does any of that have to do with whether the comments were protected speech, or libel?
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