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Public Citizen pushes IP overreach back

Originally posted 2014-10-06 09:52:09. Republished by Blog Post Promoter

Public Citizen logoGreg Beck of Public Citizen writes in with litigation news (I’ve added the links):

Public Citizen filed a motion to dismiss a lawsuit in Florida by two affiliated informercial companies that are attempting to shut down negative reviews of their day trading software on the websites and The companies claimed that running a website where consumers can post reviews of their products constitutes trademark infringement and a variety of other wrongs, and sought triple damages and attorneys’ fees against the site’s owner. In its motion to dismiss, Public Citizen argues that the Arizona-based website operator is not subject to jurisdiction in Florida, that the websites are protected by the First Amendment, that posting reviews is not trademark infringement, and that the Communications Decency Act protects a website owner from liability for what users post on the site.

Well, yeah.  Especially these two:  “the websites are protected by the First Amendment, [and] posting reviews is not trademark infringement.”  Motion to dismiss?  I hope there’s a motion for sanctions in the pipeline.
It’s not infrequently possible to blind judges to what’s really going on by flashing a bunch of trademark registrations in front of them, usually in a big fat Exhibit A to a complaint.  Small businesses can’t keep up with the cost of defending their litigation activities, and are getting hammered by IP overreach.  This is one right-wing nut saying, thank God for Public Citizen on this issue.

Personality disorder

Ms. Streisand call your office tweet

When will we ever learn?  The story here is about a lawsuit by lawyer Moira Bernstein, who complains, on behalf of a purported class, that by listing her plain-vanilla attorney name and address and regular old directory information on while festooning her unremarkable data with competing profiles, she’s been wronged.  Actionably.

Streisand EffectJ. Michael Keyes from Dorsey & Whitney, the guy who clocked those clowns in the Southern District of Florida on behalf of Angry Birds and who blogs at (and a Friend of Simon), has been watching the Avvo-suing-lawyer business for a while.  “Avvo has been sued at least twice before over its lawyer rating system–and it prevailed both times. In one of those cases the court ordered the plaintiff to pay fees to Avvo,” he points out.

Courts are loathe to silence the rating of professionals and reduce the flow of information to consumers of legal services, Michael notes, and he’s right — not only regarding professionals, of course, as we demonstrated here, for example, in our own unique way — in fact, the claim linked to there, reported as Boarding Sch. Review, LLC v. Delta Career Educ. Corp., 108 U.S.P.Q.2d 1785 (S.D.N.Y. 2013) is almost identical to the one being made by Bernstein in Illinois, although it is not based on the right of publicity; it is still every bit as silly.

“It’s hard to see how a lawyer’s right of publicity–the right to control the commercial use of one’s name, image, or likeness–could trump the right of the public to have access to this information,” Michael says.  Obviously, it can’t, even if Avvo’s ratings are a little goofy.  Hey, it’s a free country! Read More…

UK eBay seller sues buyer for negative feedback

Originally posted 2014-01-17 10:17:29. Republished by Blog Post Promoter

That really takes chutzpa.  But it’s an odd choice for the seller, who would seem to have acknowledged the buyer’s complaint by refunding his money.  (That’s “seem” — it need not be the case at all.)

On the one hand, of course, UK libel law is a lot more plaintiff-friendly than that in the U.S.  On the other hand, under the English Rule for attorneys’ fees, the loser pays.

An interesting subtext in the story is that eBay doesn’t give buyers the opportunity to respond to negative feedback from buyers, so the seller — who evidently does a lot of eBay business — evidently felt that this was the only way he could “respond.”

On the other hand, will anyone ever buy from Joel Jones — “onsalexuk” on eBay — the guy who will sue you for negative feedback — again?

The unbearable dumbness of threatening

I’ve made a career here of tut-tutting the impolitic and brand-negating utterance of baseless cease and desist and other threatening letters based on IP infringement, including this recent post about the Louis Vuitton / University of Pennsylvania dustup.  That situation demonstrated that only lawyers who neglect to think clearly about how their actions will affect their clients’ brands will line up and march into oncoming fire, expecting to achieve victory in an IP-guerilla war solely by employment of shock and awe,  By doing so, they often achieve the very opposite of what they think they’re doing by sending out, well, dumb threats.

That phenomenon, of course, is not restricted to IP law, where the purported purpose is brand protection and where such miscalculations are only the most ironic — but not necessarily the most moronic, as I explained in this post, which in turn linked to this discussion on Patterico’s Pontifications about how to dissect, and respond to, dumb threats.

And this version of the Streisand Effect is not limited to lawyers.  The threatener or the threatened can achieve it without a single dollar in fees being expended (*sniff*).  Nope, a sharp, motivated and courageous recipient of a dumb legal threat can take care of business pretty effectively himself (if need be), and you can be a dumb threatener without a JD.  So, speaking of pontiffs, I couldn’t but link to this post, to which I linked via Twitter yesterday, by Popehat’s Ken White, my friend, colleague both legal and bloggy, and (thanks to Patterico, in fact!) co-counsel, about a chap who has done just that:

When Phil Buckley (who blogs at and his wife Kristen Buckley received a certified letter from a mover, perhaps they allowed themselves to hope, for a fleeting moment, that the envelope contained a check, or an apology for substandard service. It did not. It contained a very stupid and amateurish legal threat.

See, Kristen Buckley’s parents had used a company called Casey Moversto move, and Kristen posted a negative review on Yelp on their behalf. In the context of the internet, the review was rather mild.

But Matthew Overstreet, “Sales Manager” of Casey Movers, thought that the review was unacceptable. Here’s what he said in his threat letter,which you can see in Phil Buckley’s epic post about the matter . . .

Some people would have been intimidated into removing the Yelp review. Lawsuit threats — even marginally literate ones — can be scary, and nobody wants to have to interact with lawyers if they can avoid it. But Phil and Kristen Buckely aren’t so easily threatened. Phil Buckley launched a masterful investigation of the web presence of Casey Movers and Matt Overstreet. That investigation produced evidence suggesting that Casey Movers was publishing positive notes from their customers — together with their phone numbers and email addresses — on the web without their permission. Phil also dug up evidence that raises, at least, serious questions about whether Casey Movers has been faking positive reviews online. Then The Consumerist picked it up, then I did.

Then I did.

Brand is as brand does, and, as Ken’s post says in its title, stupid legal threats are an excellent way to destroy your brand.  It’s worse when your own lawyer does this to you, of course, because you paid him to do the opposite–well worse for you; the lawyer is probably going to get paid.  But there is something about dumb self-help that is special in its own right, too.

I mitre chosen a different name for the Popehat blog myself, but though he begs off heavy lifting on trademark law Ken White, whose practice focuses on criminal law, is more than qualified to dice and slice phony-baloney faux-legal bluster.  He makes a couple of good points here, not so far off from much of what was raised in the comments in that first Patterico link above, and worth repeating.  Ken notes the throat-clearing “It’s been [brought] to my attention” business in the nastygram in question by one Overstreet.  This is a device that most of us do use rather than telling the recipient straight out something that he obviously already knows (“Hey, you wrote this thing, yo!”), but, still and all:

Maybe he’s just one of those people who thinks that scary letters have to say “it has been brought to my attention that” or “please be advised that” or “please stand by whilst I demonstrate that anyone with obstructed access to a typewriter can make a legal threat.” . . .

[Moreover], remember my mantra: vagueness in a legal demand is the hallmark of frivolous legal thuggery. Mr. Overstreet does not specify exactly what part of the Yelp review is false. Bogus legal threats rarely do. He intimatesthat Casey Movers is being criticized for following “federal moving procedures,” but does not explain. If you look at Ms. Buckley’s review, and his response, you’ll see that she complained of the amount her parents were offered for compensation of damages, and Mr. Overstreet’s response explaining insurance rates — but you won’t see anything Mr. Overstreet has called out as a specific false statement of fact.

Great points for sniffing out flimsy fol-de-rol:  Affected legalese followed by lots of heat but little light about the supposed falsehood at hand.  These are common ingredients in baseless threat letters, and especially with respect to people trying to get unfavorable reviews off the Internet by claiming defamation.

That is, these days, seldom a good idea, ya know?  Because these days people have their own printing presses, for worse or for better.  Let it come to your attention.

UPDATE:  I couldn’t resist uploading this, from my own case files.  I was a younger man then, but, as they say, still:  I call it “Cease and desist: An unfinished tragedy in four acts.