NOCI to eBay protected against tortious interference claim by Noerr-Pennington, but defamation survives

Verbena Products LLC v. Pierre Fabre Dermo-Cosmetique USA, Inc., 2020 WL 2988587, No. 19-23616-Civ-Scola (S.D. Fla. Feb. 28, 2020) 

Verbena (aka Beautyvice) sells cosmetic and beauty care products on eBay. Defendant Yellow Brand “is a leading global provider of online anti-counterfeiting services,” while defendant PFDC “sells high quality pharmaceutical and dermocosmetics products around the world, including hair care products under the trademarks RENE FURTERER and PIERRE FABRE.” PFDA sent a notice to eBay accusing Beautyvice of selling counterfeit products, and, as a result, eBay removed Beautyvice’s accused listings. These were, however, allegedly legitimate Rene Furterer products that Beautyvice lawfully purchased and re-sold. Beautyvice submitted a counter notice, but eBay told Beautyvice to resolve this matter directly with the rights owner. 

Beautyvice contacted PFDC and received first a form email and then no other reply; eBay had not restored the listings at the time of suit. 

Lanham Act false advertising: a “single, private communication with eBay” wasn’t commercial advertising or promotion, even though the effect was to limit the dissemination of Beautyvice’s own advertising. Unfair competition under Florida common law and FDUTPA claims failed for the same reason. 

Noerr-Pennington: this doctrine protects First Amendment “petitioning of the government from claims brought under federal and state laws including ... common-law tortious interference with contractual relations.” But it doesn’t preclude defamation liability. Noerr-Pennington extends to acts reasonably attendant to litigation, such as demand letters, but not to sham lawsuits. A sham lawsuit is, first, objectively baseless, and second, brought in the subjective belief “that the process of the suit itself would further an illegal objective. Baselessness is a difficult showing, and Beautyvice didn’t show that the demand letter was “objectively baseless.”  (It seems to me the court has skipped a separate, important step: is a notice of claimed infringement (NOCI) to eBay under eBay’s procedures equivalent to a “demand letter”? It doesn’t actually threaten litigation against anyone, if I understand the NOCI process. That doesn’t mean that the relatively novel NOCI should not be treated like a demand letter for Noerr-Pennington purposes, but it does seem to me to require a distinct analysis, especially since the related §512(f) isn’t subject to Noerr-Pennington as far as I am aware.) 

Anyway, tortious interference claims were kicked out, but not defamation claims.