Tag Archives: PissedConsumer

The Oatmeal thing, and stupid law

Originally posted 2012-07-02 17:00:08. Republished by Blog Post Promoter

Sometimes an objectively big story implicating this blog’s “beat” completely escapes me.  That’s what happened with the story involving The Oatmeal, a web comic, and  something called FunnyJunk. It sounds awfully stupid.

I think there’s a point where it’s just not worth trying to catch up.  I don’t think a lot of important law is going to  come out of this dispute anyway, because we all know that hard cases make bad law.  Stupid cases often make good law, on the other hand, and there is a lot of stupid floating around on this one.

Instead, in a stunning bait-and-switch, I will mention two cases which, unlike the one I did win, I didn’t win, involving real legal issues, so no one can say I didn’t tell you so.

You may remember Ascentive v. Opinion Corp., which came out pretty good for my clients, PissedConsumer.com — the Eastern District of New York said that the stupid lawsuit brought by the plaintiff was not likely to succeed, and therefore it could not have a preliminary injunction.  Well, in two other related cases, we attempted to get judges to make the not-so-vast leap of faith that a case that is not likely to succeed should, really, probably just go away.

Both times, the judges said, well, where there’s a will (i.e., a will to make unsubstantiated false claims with no real good faith basis), there’s a way; plaintiffs don’t look like winners here but we have to let them have their “day in court” — meaning that, in an American Rule (no fee shifting, ever) world, we have to let them try to bankrupt the smaller company via litigation.  Well, those are the rules, I guess.

This happened in New York State Supreme Court, and once in federal court in Philadelphia.  Both links in the previous sentence leave it to the redoubtable Professor Goldman to address both decisions.   His take on both outcomes, and the trend they represent:

Judge Buckwalter’s [Eastern District of Pennsylvania] opinion is solidly constructed in the sense that it fairly applies existing law to the alleged facts. As taxpayers, we got our money’s worth from this opinion. Nevertheless, it’s clear Judge Buckwalter and other judges lack []adequate doctrinal tools to kill doomed cases early. In the end, this case is really about Amerigas trying to shut down negative reviews of its business. . . . I could imagine other judges finding more doctrinal flexibilities to address the realpolitik of this situation. I can’t blame Judge Buckwalter for failing to do so, but the result is unfortunate nevertheless.

In other words, even a smart judge can’t help it if the law is not so bright when it comes to what is, essentially, trademark bullying — a business model that remains soundly intact for the time being.

Now, go eat your oatmeal, like this guy did:

Roca Labs: Until someone puts out an eye

Roca Labs:  Are we confused yet?

Are we confused yet?

It has just been all too, too much to follow, especially from the distance I’ve had to keep from the whole thing — a small distance, mind you,  as I’ll explain.  But really, all the fun is taking place in Florida, a somewhat larger distance, excepting by email, see, and —

Well, as I said.  It’s almost too much to follow.  The “it” is the rollicking litigation carnival brought to our good friends at PissedConsumer.com by the world-famous Roca Labs.  And yes, it is too much too follow, but by the grace of the Internet there’s Popehat, and he’s done the hard work for me, to wit:

[D]uring the month that I was consumed by trial, a case arose that appears scripted — a case that seems intelligently designed with stock characters, movie-villain behavior, and hilarity.

I speak of Roca Labs vs. anyone who speaks ill of them.

Roca Labs is in the weight-loss business. As near as I can tell from its website —check it out yourself — Roca markets an alternative to various weight-loss surgeries: a substance that you consume to fill your stomach, thus reducing appetite and available pizza space. The graphics of the Roca Labs substance remind me of the psychomagnotheric slime from Ghostbusters II, but I want to emphasize that I know of no evidence that Roca Labs’ product has any supernatural properties.

Yet the arcane and unnatural plays a role in Roca Labs’ approach to the market — in the form of an unnaturally ridiculous approach to criticism.

Roca Labs apparently has a clause in at least some of its purchase contracts that forbids customers from criticizing it or its products. Here’s how they describe it, openly, in one of their filings:

In exchange for a significant discount (discounts average $800) customers contractually agree that, regardless of their outcome, they will not speak, publish, print, blog, or write negatively about Roca or its products in any forum.

Now, I think you’d have to be quite stupid to agree not to criticize the person who is providing you with medicinal substances, but then we are talking about a population that has decided to consume large volumes of pink slime to lose weight.

Those “I won’t criticize” clauses rarelyendwell. But Roca Labs is optimistic, to put it mildly. They’ve sued Pissedconsumer.com on a theory that I will call “novel” because “bat&#@! crazy” is rude. Roca Labs says that Pissedconsumer.com is interfering with their contractual relations with their clients by allowing the clients to post complaints about Roca Labs. That’s their attempt to evade the protections of Section 230 of the Communications Decency Act, which generally immunizes sites from suits over what their visitors post. Roca Labs is even seeking a preliminary injunction to force PissedConsumer.com to take down the critical posts, a classic case of unconstitutional prior restraint.

Marc Randazza is representing Pissedconsumer.com. As you would guess, that is not a happy development for Roca Labs. Randazza kicks the &#@! out of Roca Labs’ ridiculous demand for prior restraint, and in the course of doing so provides a swarm of BBB complaints, declarations from unhappy customers, and a rather unflattering review by a doctor.

But wait — there’s more! Read More…

PissedConsumer.com: Devere Group v. Opinion Corp.

Brooklyn view -- Eastern District of New York federal courthouseI 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. . . . Read More…

A trademark lawyer’s got to loy… er

Discussing trademark law blogging with a colleague last night, I was asked whether I’d written anything about the EAT MORE KALE story.  In order to excuse my laziness, I said, well, these low-hanging-fruit items that everyone is busy with, why, I let everyone else opine on them, see, and then I come in later and set everybody straight.

Eat More Kale

Sue anything you want about me, so long as you sue me

I didn’t exactly say it that way but I think it may have sounded like that.

Well, I’m still not sufficiently up to speed on the issue to have anything to say about it that isn’t pretty obvious already.  But I like this well-balanced take from my friend Steve Baird:

A couple of quotes from the NY Times article caught my eye:

“In a statement, Chick-fil-A said, ‘We must legally protect and defend our ‘Eat mor chikin’ trademarks in order to maintain rights to the slogan.'”

So, Chick-fil-A, am I hearing right, you’re saying “there’s a chance,” of becoming generic and losing all rights in your “Eat Mor Chikin” slogan if Bo continues selling his “Eat More Kale” products?

Here’s the response from Bo’s pro-bono counsel:

“We believe it’s pretty clear, the issue of dilution and confusion aren’t really triggered here,” he said. “There’s no one out there that’s going to come forward and say, ‘I thought I was buying a Chick-fil-A product but I got this T-shirt.’”

I’m thinking both missed the mark a bit.

As to Chick-fil-A’s position, there is no legal obligation to enforce, and the risk of trademark genericide here seems even more exagerrated and remote than the risk of genericide when brandverbing — something that significant brand owners have learned to manage.

And as to Bo’s position, while I agree with the conclusion that there is no likelihood of confusion or dilution here, whether consumers confuse the products — chicken sandwiches and t-shirts — is not the test of likelihood of confusion or dilution.

Yeah, see, it’s almost never like they set it up in the papers, or the way the lawyers spin it for the papers.  And this thought reminded me of how I wanted to expand a little on something I wrote at the end of this post last week:

You can be very much a lawyer and sign off on a position that isn’t justified in an absolute or abstract sense but which falls short of being frivolous.  Especially because so many positions like that … work.

I thought of that today when I filed a declaratory judgment action on behalf of a client that had received a series of completely spurious cease and desist letters claiming both trademark and copyright infringement, along with the usual bluster about statutory damages and attorneys’ fees, for conduct that was simply, utterly not remotely colorable as a trademark or copyright infringement.  The demand letter insisted that, to avoid litigation in a faraway locale, my client “cease any and all unauthorized use of the XYZ Marks and all variations thereof.  This includes all advertising and promotional efforts, including Internet-related activities and any keywords, adwords or domain names that make any reference to the XYZ Marks.”

“Make any reference to the XYZ Marks”?

I might ask, when are lawyers going to have the nerve to tell their clients, “We can’t demand that.  You can’t stop people from talking about you on the Internet or anywhere else by claiming that they are infringing your trademark if they do.”  But then I remember cases like the Jones Day debacle where the plaintiff law firm achieved just that.  It happens every day.  It often works.

I have written so many times, from so many perspectives, about trademark bullying, and my disappointment in the judges who let it happen, that even I am bored of reading it.  Is there another way of looking at it, though?   Read More…