PissedConsumer.com: Devere Group v. Opinion Corp.
I have — win, lose or draw — kept you all abreast of the progress of the various lawsuits against PissedConsumer.com (otherwise known as Opinion Corp.), the gripe site that people hate so much.
Why do some people hate PissedConsumer.com? Because they assume whatever someone writes about them in a lawsuit must be true! This is an ironic thing for people to do concerning a gripe site being sued for “defamation” under the cover of trademark infringement.
Well, anyway, rather than merely update the post from February linked to above, which includes links to the last three decisions involving PissedConsumer.com, it seemed reasonable at this juncture — for it is, after all, July already; about as un-February as you like — to put up a new post excerpting selections from today’s decision by District Judge Frederic Block in the Eastern District of New York, dismissing a Lanham Act trademark infringement claim against PissedConsumer.com for failure to state a claim for which relief can be granted.
Opinion Corp. creates “subdomains” for each of the companies reviewed on PissedConsumer. Complaints about deVere are posted on the subdomain devere- group.pissedconsumer.com (the “deVere subdomain”). The deVere subdomain page contains a brief description of the company, followed by a section labeled “Devere Group Complaints and Reviews.” Review headings include “Devere stole my pension” and “Devere Lies- Conmen-Fraudsters.” The Google search engine displays the deVere subdomain among the top results when a search is performed for “deVere” or “deVere Group.” DeVere attributes this high ranking to Opinion Corp’s search engine optimization (“SEO”) practices, through which Opinion Corp. makes the contents of PissedConsumer.com appear particularly relevant to the algorithms of search engines like Google. . . .
DeVere asserts a claim for “trademark infringement, unfair competition. . . [and] false designation of origin” under section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). . . .
DeVere contends that Opinion Corp. improperly used deVere’s trade names in text on PissedConsumer.com and in the deVere subdomain, in a manner “likely to cause confusion as to whether deVere is sponsoring, has authorized or is somehow affiliated with the services and products advertised by Opinion Corp. at PissedConsumer.com.” Defendants counter that (1) deVere fails to allege the existence of a protected trademark and (2) defendants’ use of deVere’s trade names is not likely to cause consumer confusion. . . .
[D]efendants argue that “the use of the alleged trademarks of deVere on PissedConsumer.com could not plausibly lead even the dimmest Internet user to believe that the commentary on the website – so offensive to plaintiff that it brought this lawsuit – was approved by deVere.” In response, deVere contends that the likelihood of confusion element is satisfied by the “initial interest confusion” doctrine. . . .
Courts have consistently held that so-called “gripe sites” incorporating derogatory or critical terms alongside a company’s trade name, in both the domain name and the website contents, do not present a likelihood of confusion for the purposes of Section 43(a). . . . In particular, defendants rely upon Cintas Corp. v. Unite Here, 601 F. Supp. 2d 571 (S.D.N.Y. 2009), aff’d 355 Fed Appx. 508 (2d Cir. 2009), in which the district court dismissed Lanham Act claims against the operator of a gripe website, www.cintasexposed.com. . . . [which held that] there “is no justification for relief under Section . . . 1125(a) ‘when the defendants. . . us[e] plaintiff’s mark not in a manner that would create confusion as to the source, but rather as part of a message whose meaning depend[s] on reference to plaintiff’s product . . .”
That logic is applicable here – there 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. As this court recently found in a very similar Lanham Act case against Opinion Corp. as operator of PissedConsumer.com, it “strains credulity that an Internet user would believe that plaintiffs would sponsor or otherwise approve of a site that contains such criticisms.” Ascentive, LLC v. Opinion Corp., 2011 WL 6181452, at *9 (E.D.N.Y. 2011).
In addition, deVere’s reliance upon the “initial interest confusion” doctrine is unpersuasive. . . . The doctrine is not applicable here. PissedConsumer.com does not divert Internet users away from deVere’s website because deVere does not have a website that competes for business with PissedConsumer.com; Opinion Corp. provides a forum for customer criticism of businesses, while deVere provides financial services. . . . Initial interest confusion does not arise “in circumstances where the products in question are used for substantially different purposes and therefore the merchants are not in close competitive proximity.” Big Star Entertainment, Inc. v. Next Big Star, Inc., 105 F. Supp. 2d 185, 209-10 (S.D.N.Y. 2000). Accordingly, deVere’s allegations “do not create any plausible inference of intentional deception”; there is no risk that a customer seeking deVere financial services would mistakenly visit and divert their business to PissedConsumer.com.
Defendants’ motion to dismiss is granted because deVere has failed to state a claim that defendants’ use of deVere trade names violates section 43(a) of the Lanham Act.
Enjoy the weekend. Hot out there!