Originally published on March 5, 2013.edb_bw

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. . . .

Here’s the opinion in You Fit v. Pleasanton Fitness LLC.

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.

But the thought of it raises the next, highly salient, point in Evan’s post:  It would be weird, yes, but it would also be the kind of thing you might think someone trying to plant evidence of a LIKELIHOOD OF CONFUSION might post on Yelp:

The court’s opinion does not address what one might see as the real problem with the Yelp evidence — its authenticity. Perhaps the parties did not bring that up. But one does not have to venture far in imagination to see how a crafty plaintiff could generate, or direct the generation, of self-serving social media content that would be helpful as evidence in a litigated matter.

Of course the whole topic of hearsay is an offshoot of the authenticity question, but the issue of self-serving social media content in such a context is, yes, troubling.  There’s no question that parties have done such planting:  I’ve seen it and I’ve litigated over it.  More than once.  The use of fake anonymous commentary on websites for anticompetitive or defamatory purposes is routine, and one of the best arguments against blanket protection of anonymity on the Internet there is.

You’d certainly want to see more evidence of a LIKELIHOOD OF CONFUSION than such a post before issuing a preliminary injunction, especially because, applying the sniff test, while I, er, don’t get to the gym quite as often as I used to ought to, I can still say that the “post” relied on as proof of LOC in this opinion reeks like a gym bag.  It reads exactly like a planted post, doesn’t it?  Which brings us to the question — you know, the LIKELIHOOD OF CONFUSION question:

You Fit v. Fit U?  In fact, the court, in its opinion, found the plaintiff’s mark to be weak.  But relying in part on an intention to copy gleaned from certain communications, it held:

Although marks using common words are not afforded broad trademark protection, they are still protected from infringement. Balancing the factors, the indications of actual confusion and the close similarity of the marks and services create a likelihood of confusion. Preliminary injunctions are “an extraordinary and drastic remedy” not to be granted “unless the movant clearly established the burden of persuasion.” Notwithstanding, I agree with the magistrate judge that Plaintiffs have “clearly established the burden of persuasion” required to demonstrate a likelihood of confusion.

That’s a pretty big “Notwithstanding” here.  But this is a bigger one:

Defendants failed to appear at the hearing or otherwise timely respond to the motion for preliminary injunction.

Yeah, well, there you go.  Actually, the docket entries for this case indicates a procedural mess.  As they say in social media statuses, “It’s complicated.”

So is the matter of deducing confusion from anonymous social media postings, though.  The court’s entire analysis of whether to admit these posts as evidence of you-know-what, consisting of one sentence — “While these anonymous posts are not conclusive evidence of actual confusion, they are indicative of potential consumer confusion. This factor therefore weighs in favor of a finding of likelihood of confusion” — wasn’t, however.

Is this really such heavy lifting?

By Ron Coleman

I write this blog.