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 PissedConsumer.com, 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 deveregroup.pissedconsumer.com, 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 PissedConsumer.com 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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