Tuesday, August 02, 2011
Followup on critic/competitor issue
The defendant in this case about alleged competitor defamation, who dropped me a note to let me know that she's gotten pro bono counsel through the Berkman Center's Online Media Legal Network, also points to this FTC case with overlapping parties to the plaintiffs in her case. If/when the FTC proves its case, the defamation claims would fall through, and if the defendant is not in fact an arm of the competition, then I'd say this would pretty clearly be an exceptional case for Lanham Act purposes, justifying a fee award. While suing to silence a critic is not directly anticompetitive (Judge Posner's favorite reason for awarding fees to defendants in Lanham Act cases), that's only because the critic isn't in competition, and we should also disfavor using the Lanham Act, with its lower-than-defamation standards for liability, in an attempt to suppress criticism by noncompetitors.