Anonymous online comments as proof of a LIKELIHOOD OF CONFUSION at the preliminary injunction stage? Evan Brown explains:
In a trademark case between competing health clubs, the court considered a Yelp posting in entering a preliminary injunction, finding that while the anonymous posts were not conclusive evidence of actual confusion, they were indicative of potential consumer confusion. . . .
The court rejected defendant’s hearsay argument. It noted that affidavits and hearsay materials which would not be admissible evidence for a permanent injunction may be considered if the evidence is appropriate given the character and objectives of the injunctive proceeding. . . .
What exactly was the posting? Evan excerpts it:
I am soo [sic] confused. I was a member at Youfit in [Arizona] and when I moved back to [California] I saw this place by my house and thought great my gym is here! When I went into the gym, I realized it was called Fit U. They use the same basic color scheme on their sign and the motto seemed the same. When I asked the girl at the desk, … [she] said her owner created this brand. I said what are you [sic] rates? Seemed very similar to me as when I was a member at Youfit. Very confusing and a big let down.
Evan points out that the court went so far as to conclude that the Yelp post was not hearsay to begin with because “It was not being offered to prove the truth of the matter asserted, but to demonstrate the consumer’s confusion — a then-existing mental state of the declarant, which is an exception to the hearsay rule.” As Even points out, this is a little, uh, confusing:
The hearsay and non-hearsay uses of the post both turn on the same content, particularly the statement “I am soo [sic] confused.” That statement is the matter asserted (and in such capacity, excludable hearsay).
In other words, the truth of the matter asserted is the existence, vel non, of a LIKELIHOOD OF CONFUSION, right? Well, maybe. After all, the court did, as Even notes, reject the post as proof of actual confusion — and that’s what’s being asserted. The commenter did not write, “I’m so likely to be confused!”
That would be weird. Read More…