review by competitor posing as consumer actionable under Lanham Act

Beyond Blond Prods., LLC v. Heldman, 2022 WL 2036306, No. CV 20-5581 DSF (GJSx) (C.D. Cal. Mar. 3, 2022)

This is a lawsuit about an allegedly fake review of Beyond Blond’s video on Amazon allegedly written by Heldman on September 10, 2017. It wasn’t laches-barred for purposes of a motion to dismiss because it wasn’t clear when Beyond Blond learned of Heldman’s review, or “whether Beyond Blond should have known of it – and particularly whether it was authored by Heldman – before the expiration of the applicable statute of limitations.” Defendants also didn’t show they were prejudiced by any delay.

Heldman’s Amazon review, as commenter “tvideo”:

BB Productions dishes out a bunch of low quality PD, nothing you can’t get from YouTube or cheap DVDs. It must be some guy who has to [sic] much time on his hands as Prime viewing for PD isn’t going to make anyone rich and no real company called “BB Productions”. Anyone who uses the word “productions” is some small nobody. Again just common low quality quick buck PD.

This allegedly misled Beyond Blond’s existing and prospective customers into “believing that the review was coming from a genuine reviewer and not Beyond Blond’s direct competitor with an illicit motive.”

The use of “tvideo” as a commenter name was not itself literally false “because it is not in itself a statement that can be true or false.” But it was plausibly misleading. Reviewing a competitor, without disclosing one’s status as competitor rather than consumer, can be misleading.

Also, the statement that there is “no real company called ‘BB Production[s]’ ” was plausibly literally false. Although there is no state-registered entity under that exact name, BB is “clearly” a shorthand for “Beyond Blond,” and that is a real registered LLC.

However, statements that the videos were “low quality [public domain]” were mere opinions.

Commercial advertising or promotion: Yes, because the review was commercial speech made by Beyond Blond’s direct competitor. “[S]peech that does not propose a commercial transaction on its face can still be commercial speech” for purposes of determining whether a statement is made as part of commercial advertising or promotion.

Materiality: Defendants argued that a free Amazon review was not material, especially given that the Beyond Blond video Heldman reviewed includes “at least three overtly racist and offensive cartoons,” and other reviewers commented that the video quality was poor. But BB pled that at least five Amazon consumers indicated that they found the review to be “helpful,” which was sufficient to plead materiality.