Courts Losing Patience With Clearly Bogus Trademark Claims; Dismissing Them Early

from the good-for-them dept

Eric Goldman has a post about a district court (Eastern District, NY) dismissing a trademark claim against the site PissedConsumer, by a company that was upset about what people were saying about it on the site. Of course, that's a pretty clear abuse of trademark law, which isn't about letting trademark holders block any usage -- especially not reviews or criticism. Instead, trademark law is supposed to be about protecting consumers against confusion over products and services for sale. That is, it's about stopping Bob's Cola from pretending to be Coca Cola -- not necessarily because it protects Coca Cola, but because it protects the consumer doing the buying.

In a case like this -- which we've seen all too often -- Devere Group got upset about what people were saying about them on PissedCustomer, and tried to pretend that was a trademark violation. Similar cases tend to get thrown out eventually, but what struck Goldman as interesting about this is that it got tossed out early over a lack of consumer confusion at the "motion to dismiss" stage. At that point, the court is supposed to assume that everything the plaintiff is saying is true (later stages of the case can explore if that's true). So, to throw out the case at this stage is really early. As Goldman notes:

Running through a truncated likelihood of consumer confusion mutli-factor analysis, the court says PissedConsumer isn't deVere's competitor, there's no chance PissedConsumer will "bridge the gap" to become a competitor, deVere didn't allege bad faith and deVere didn't allege actual consumer confusion. The court bypasses the remaining factors, something an appeals court probably won't do. Instead, the court says that judicial precedent has held that gripe sites don't create consumer confusion.

Goldman notes that even if this is a good result (having a court dump an obviously bogus lawsuit at the earliest possible point), he expects an appeals court to overturn this for happening too early. However, in an update, he also highlights a few more cases pointed out by Rebecca Tushnet of courts doing something similar:

Rebecca sent some other recent examples of trademark claims failing on a motion to dismiss, including The Hangover II case, Forest River v. Heartland RV and Architectural Mailboxes v. Epoch.

While it may be slightly procedurally questionable, I'm wondering if this shows that courts are very, very aware that companies are seeking to abuse trademark law these days and they're having none of it. Combined with some similar early dismissals in copyright trolling cases, and it seems like judges are showing little patience for companies trying to abuse IP laws to silence others.

Filed Under: confusion, courts, dismissals, trademark