commercial speech requirement defeats Lanham Act claim against competing news channel

Tang v. Guo, No. 17 Civ. 9031 (JFK), 2019 WL 1207859 (S.D.N.Y. Mar. 14, 2019)

Plaintiff Tang is a political activist, author, and “one of the leading Chinese political dissidents.” He currently runs two pro-democracy nonprofit organizations and co-founded the online, independent media outlet “Conscience Media,” which are supported with donations. Tang also “conducts and host[s] conferences and fundraising events.”

In early to mid-2017, defendant Kwok, “a Chinese multi-billionaire and real estate mogul,” began to market a YouTube series, “Everything Is Just Beginning.” Tang alleged that the real purpose of “Everything Is Just Beginning” “was to compete with Mr. Tang personally and socially, as well as professionally, in the online media business.” Kwok allegedly “began to contact Tang’s potential donors” to dissuade them “from doing business with or contributing to ... Tang or his online media outlet, Conscience Media.” Kwok also began posting “taunting material and defamatory statements” about Tang and his wife Jing on YouTube and Twitter, accusing them of being spies and accusing Tang of defrauding donors and of being a “swindler” and convicted rapist. As a result, many individuals allegedly cancelled their upcoming trips to Tang’s Democratic Revolutionary Conference and Tang lost donors to his organizations and website.

Tang sued for violation of the Lanham Act and brought various state law claims for slander, tortious interference, and the like. The court dismissed the Lanham Act claim for want of commercial speech, and declined to retain jurisdiction over the pendent state claims.

Tang argued that Kwok’s web postings were commercial speech because he made them to divert viewers and donors from Tang’s media platform to “Everything Is Just Beginning.” In addition, Kwok allegedly presented links to his real estate properties alongside his videos. The court found that Tang failed to adequately allege economic motivation from his communications on YouTube, Twitter, and to individual donors. Though Kwok allegedly sought to gain viewers, they didn’t allege that he intended to profit from that increase by, for example, ad revenue or donations. As to links to Kwok’s Chinese properties, there were no allegations that Kwok’s communications were made with the intent of gaining potential customers to his real estate ventures. As the court noted, the subject matter of the videos didn’t relate to Kwok’s hotel business.