Monday, August 20, 2018

Court considers fake reviews not deceptive if they're just puffery

Jive Commerce, LLC  v. Wine Racks America, Inc., 2018 WL 3873675, No. 1:18-CV-49 TS-BCW (D. Utah Aug. 15, 2018)

The parties compete in the wine rack and wine cellar industry. Jive’s principal Jason Miller was formerly employed by WRA. Miller fell out with WRA’s owner, Jeffery Ogzewalla, and founded Vino Grotto.  Jive alleged various acts by WRA to harm its business, such as using Jive’s Vino Grotto and Home Collector Series marks in search engine ads to redirect consumers to WRA’s websites. WRA’s website allegedly copies content, images, trade dress, and look and feel from Jive’s website. WRA also allegedly contacted Jive’s vendors to persuade them not to work with Jive and made defamatory comments about Jive/Miller. WRA also allegedly posted false and deceptive positive reviews on the internet, and also forged photographs and address information on their website “to create the illusion of legitimacy and to hide the geographic origin of their goods.”

The court denied a preliminary injunction.

As for the false reviews, the court rejected the Lanham Act claims because nothing in the content of the reviews left by WRA’s employees had been shown to be false and much was puffery.  E.g., an employee stating that he “found the 24 bottle table top wine rack fit neatly in that space, arrived quickly, and was very sturdy” could well have concluded these things.  [Arrived quickly, though?  More significantly, the court doesn’t give weight to the at least implicit misrepresentation—I would say necessary implication—that the review is from a true counterparty, rather than from a representative of the seller. The court treats only the statements in the reviews and not the reviews themselves as possible statements of fact, but “I am an independent customer” is also a factual statement and the FTC would surely say it had been conveyed by the reviews.]

Likewise, the court wasn’t impressed that WRA listed its mailing address as being in Bend, Oregon, even though it had Utah as the returns address. The court accepted that WRA had a presence in both states, and any confusion caused by altering an image of a building owned by WRA in Utah (as happened on the website) hadn’t caused any demonstrated injury.

The parties disputed who was the copier and who the copied as between the two websites, but the court lacked sufficient information to determine priority.  Furthermore, the court didn’t think the websites were all that similar, except for similarities coming from the genre.

Trademark claims related to use of Jive’s marks in bidding for keyword ads didn’t show likely confusion, per 1-800-Contacts. The ad in the moving papers was clearly marked as an ad, and Jive’s website was directly below it.

Jive also made claims based on WRA’s sale of products under the Home Collector Series mark during a time in which, WRA contended, Jive was not using the mark. Some factors favored a finding of likely confusion, but there was no evidence of actual confusion, consumers’ degree of care, and strength of the mark (if any); WRA also ceased use of the mark, making injunctive relief unnecessary.

Tortious interference/defamation: not enough evidence of injury inflicted by improper means; many of the people to whom RWA spoke apparently kept doing business with Jive or ceased doing business with it for other reasons.  (Declarations from the identified customers here helped RWA a lot.)

Belt and suspenders: allegations that “Defendants’ conduct has eroded and threatens to further erode Plaintiff’s customer and vendor goodwill”; their “actions threaten to further diminish the competitive value of Plaintiff’s products in ways that could be difficult to measure”; and “there is a substantial risk to Plaintiff of lost future profits, damage to its reputation, and loss of goodwill and loss of competitive market position” were all too conclusory to constitute irreparable harm.

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