Investment Bank Says Criticism Is Trademark Infringement; Gets Misplaced Injunction Against Web Forum
from the not-good dept
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
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Houlihan Smith
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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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Hi ho, hi ho, to the top of google you go!
Suckers.
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wait for it
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Houlihan Smith...
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Houlihan Smith...
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Smart lawyers
Customer service is being killed by lazy companies like this one.
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Trademark Infringement
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Re: Trademark Infringement
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Re: Trademark Infringement
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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.
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Re: oh really?
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Re: oh really?
What does any of that have to do with this restraining order?
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Re: oh really?
> 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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Re: oh really?
> 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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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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oh really??
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Re: oh really??
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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