Thursday, July 19, 2012

Gripe site makes confusion unlikely, says court on a motion to dismiss

DeVere Group GmbH v. Opinion Corp., --- F. Supp. 2d ----, 2012 WL 2884986 (E.D.N.Y.)
I’m not a huge fan of Iqbal/Twombly.  But at the very least, sauce for the goose should be sauce for the gander; and also there can be well-justified rules against accepting a mere allegation that certain facts are likely to cause consumer confusion. 
DeVere is an international financial consulting company that alleged rights in various deVere names.  Opinion runs, which provides a forum for, you guessed it.  It advertises itself as a “premier consumer advocacy group,” and as a review website which allows consumers to “make better choices” and provides an “empowering” and “unbiased” view of companies and products.  Complaints about deVere are on, which describes the company then has a section labeled “Devere Group Complaints and Reviews.” Review headings include “Devere stole my pension” and “Devere Lies Conmen–Fraudsters.” Google returns the deVere subdomain among the top results for searches for “deVere” or “deVere Group,” allegedly because of Opinion’s SEO techniques.
DeVere sued for trademark infringement for the use in text and in the subdomain.  Though deVere plausibly alleged that it had a valid mark, it couldn’t plausibly allege likely confusion, even initial interest confusion.
Several factors weighed against deVere’s claim.  First, the parties didn’t compete nor were they likely to bridge the gap.  Second, deVere failed to allege actual confusion.  Third, deVere failed to allege bad faith intent to confuse.  More to the point, courts have “consistently” held gripe sites unlikely to confuse because they convey critical messages.  “[T]here is no likelihood that a consumer visiting would mistakenly believe that deVere sponsored or approved the contents of that website. The term ‘pissed’ in the website name is clearly negative, as is the commentary on the website about deVere's services--terms like ‘stole,’ ‘WARNING,’ ‘fraudsters,’ and ‘scams’ figure prominently.”  Confusion was simply not credible.
Initial interest confusion provided no help either.  Given the ease of retracing one’s steps online, initial interest confusion requires intentional deception.  In any event, defendant didn’t divert consumers from deVere’s website because deVere didn’t have a competing website.  PissedConsumer is a forum for customer criticism, not a provider of financial services.  IIC also requires close competitive proximity.  Thus there could be no plausible inference of intentional deception.
The court didn’t address the other factors, including the mark’s strength and the similarity between the marks, because they didn’t weigh heavily one way or another.
Eric Goldman worries that this won’t hold up on appeal, but I’m more hopeful.  Yeah, if I’d have been the district court, I’d have explained that strength/similarity didn’t have much weight in the particular context of a gripe site, but I don’t think this is a hard case, and as the court pointed out there’s now substantial gripe-site precedent, including a previous successful motion to dismiss in the Second Circuit.

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