Dental Firm Tries To Dodge Section 230 With Trademark Claims; Runs Headfirst Into Anti-SLAPP Law

from the can't-even-manage-a-lawsuit,-much-less-its-reputation dept

Abbey Dental of Las Vegas doesn't like the number of negative reviews that are piling up at Pissed Consumer. But that's about all it (and its lawyers) know. It seems to understand that taking on Pissed Consumer with a defamation lawsuit would be a complete failure, as would be any effort it made to sue individual reviewers. Nevada has an anti-SLAPP law in place, which would fit Abbey Dental's attempt to artificially resuscitate its reputation to a tee.

So, instead of handling this in the normal way (which would also be the route least likely to succeed), the company has decided to take a more oblique approach: a lawsuit filed in federal court (to better dodge the state's anti-SLAPP law) centered on a variety of tremendously stupid trademark infringement claims.

Pissed Consumer, represented by Marc Randazza, has decided to swerve as well -- the better to attack Abbey Dental's circuitous claims head on and ensure it doesn't escape the anti-SLAPP statute it's so desperate to avoid.

As is noted in the first footnote of Pissed Consumer's motion to dismiss/summary judgment request [PDF], the defendant and its lawyer have given Abbey Dental plenty of time to back away from the precipice.

[Abbey Dental's] complaint was filed on October 27, 2015. Shortly thereafter, Defendant warned Plaintiff that the case was frivolous and would be subject to an Anti-SLAPP motion. (See Email from Randazza to Amin dated Jan. 6, 2016, attached hereto as Exhibit 1.) Defendant spent more than a year trying to get Plaintiff to come to its senses. After eight extensions seeking to avoid this, Defendant finally filed its first Anti-SLAPP motion. (ECF No. 25.) Plaintiff responded by filing an Amended Complaint 1 day later. The Amended Complaint simply compounds the problem, and cures nothing.

Abbey Dental's lawyers are creative, but the arguments made are novel, which is a judicial term for "wtf." The company -- in its desperation to avoid having to deal with Section 230 of the CDA -- claims that Pissed Consumer has done everything from domain name squatting to abuse of keywords/metatags (something settled a long time ago) to injure its trademarked name. Pretty much everything in its complaint is -- at best -- stupid bullshit.

Abbey argues that using the words “Abbey Dental” on a web page with consumer reviews about Abbey creates a likelihood of confusion in the minds of consumers by making them think that the web site is affiliated with Abbey. This makes no sense. This use is clearly nominative fair use.

[...]

The first issue is Opinion’s use of search result copy on Google. The copy that accompanies a search result for the term “abbey dental” that leads users to Opinion’s web site informs users that they will arrive at a site with reviews of this particular business. The Ninth Circuit summed up the weakness of Abbey’s argument here when it recognized that internet users:

fully expect to find some sites that aren’t what they imagine based on a glance at the domain name or search engine summary. Outside the special case of . . . domains that actively claim affiliation with the trademark holder, consumers don’t form any firm expectations about the sponsorship of a website until they’ve seen the landing page – if then.

[...]

Though it is not an element of an infringement claim, Abbey also alleges at that Opinion is diverting Internet users to Abbey’s competitors by providing advertising on its web site. Even if this were an element of an infringement claim these allegations would not help Abbey. Opinion does not create these advertising links, and they are tailored to the search patterns of visitors.

That's just some of the trademark claims dispensed with. Then there's the completely ridiculous "cybersquatting" claim -- raised because Pissed Consumer's review page URL contains the words "Abbey Dental."

[T]here is nothing actionable about Opinion’s use of the Abbey Dental mark in its sub-domain [abbey-dental.pissedconsumer.com]. Tabari is instructive here, and observed that,

when Internet users search for a web site through a search engine the consumer will click on the link for a likely-relevant site without paying much attention to the URL. Use of a trademark in the site’s domain name isn’t materially different from use in its text or metatags in this context; a search engine can find a trademark in a site regardless of where exactly it appears.

As for any "customer confusion," not even a "moron in a hurry" would think Pissed Consumer's gripe page was somehow an official extension of the Abbey Dental brand. Not only that, but it's impossible to write about a business without using the business's name.

Abbey’s argument on this point is frivolous on its face; Opinion’s use is plainly a nominative fair use of the “Abbey Dental” mark; there is no way to have a review page about a business without naming the business. Opinion does nothing to create any sense of affiliation or sponsorship by the thousands of reviewed businesses.

Since Abbey Dental seems intent on avoiding fights it knows it can lose (Section 230, Nevada's anti-SLAPP law), Pissed Consumer is bringing the fight to it. The combination motion asks for both a dismissal and sanctioning under the state's anti-SLAPP law. As Randazza points out in the motion, the company's federal filing shouldn't allow it to escape the reach of local statutes.

Anti-SLAPP statutes apply in federal court. See Batzel v. Smith, 333 F.3d 1018, 1025-26 (9th Cir. 2003); see also Thomas v. Fry’s Elecs., Inc., 400 F.3d 1206, 1207 (9th Cir. 2005). NRS 41.650 provides that a person who engages in conduct protected under Nevada’s Anti-SLAPP statute “is immune from any civil action for claims based upon the communication” (emphasis added). NRS 41.635-670 creates a substantive immunity from certain categories of lawsuits and is substantive in nature.

The motion notes that Abbey Dental's bogus trademark infringement lawsuit is just a creative way to avoid dealing with legal precedent it can't surmount and is wholly intended to make criticism of it disappear. This is made even more explicit by its requested injunction.

Abbey’s claims are centered on the theory that Opinion is liable for directing consumers to through its use of industry-standard sub-domains and Google ad copy. To ensure that users actually see reviews about a company, a consumer review web site must use a given business’s name in a sub-domain and ad copy. To restrict such a site from doing so would be to effectively remove web pages containing reviews of the business from the Internet, as no one would be able to find them while performing an Internet search. Abbey’s prayer for relief makes this even clearer, as it seeks both a preliminary and permanent injunction barring Opinion from using Abbey’s name on pissedconsumer.com.

Pissed Consumer is not only asking for a dismissal and a fee award under the anti-SLAPP statute, but also additional sanctions against Abbey Dental for bringing such a frivolous complaint to court.

With any luck, this will all be granted. Abbey Dental has to know its trademark infringement claims are baseless. I guess it was hoping Pissed Consumer would be less familiar with IP law, or that the presiding judge would would be the "moron in a hurry," mistaking a lot of legal-sounding mumbo jumbo for actionable claims.

Final note: Abbey Dental's reputation may be hurting right now, but I assume the installation of Dr. [name], [title] will soon turn things around.

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Filed Under: anti-slapp, cda 230, free speech, nevada, reviews, section 230, trademark
Companies: abbey dental, pissed consumer