Eric Goldman published an interesting post yesterday about a new case, Lifestyle Lift Holding, Inc. v. Real Self, Inc., which is a trademark dispute involving RealSelf.com,
an interactive website with forums that let consumers discuss their
experiences with cosmetic and plastic surgery procedures and vote on
whether a procedure was "worth it" or "not worth it." Lifestyle Lift owns the trademark "Lifestyle Lift," which it licenses to doctors who perform facelift procedures under that name. A number of RealSelf users have written negative reviews of the Lifestyle Lift procedure, with 55% of users currently saying that the procedure was "not worth it."
The complaint, filed in federal district court in Michigan, alleges federal trademark infringement, unfair competition, and a violation of the Michigan Consumer Protection Act based on the website's use of Lifestyle Lift's trademark. Goldman writes about the case:
No matter how many times I see it--and in the Internet era, I see it all too frequently--I always shake my head in disappointment and frustration when a company uses trademark law to lash out against unflattering consumer reviews. To these companies, trademark law is a cure-all tonic for their marketplace travails, and trademark doctrine is so plastic and amorphous that defendants have some difficulty mounting a proper defense. As a result, all too frequently, the threat
of a trademark lawsuit causes the intermediary to capitulate and excise valuable content from the Internet. Fortunately, a defendant has decided to fight back and resist the pressure to succumb to unmeritorious trademark claims. See the press release.
We certainly share Goldman's disappointment when we see intellectual property owners using trademark and copyright law to silence criticism, and there have been no shortage of cases in recent memory that demonstrate this point -- BidZirk v. Smith, Savage v. Cair, and ABC v. Spocko to name a few.
That said, LifeStyle Lift's complaint seems dead set on not pinning the alleged trademark infringement on the user reviews. It complains primarily about RealSelf.com's use of the Lifestyle Lift mark in metadata and its inclusion of a page that incorrectly listed contact information for doctors performing the procedure in Michigan. (Notably, however, one of the exhibits to the complaint consists almost entirely of user-reviews about Lifestyle Lift.)
While this strategy may help minimize the abuse-of-trademark argument, it also leaves Lifestyle Lift with a less than impressive trademark claim. While the caselaw is still mixed, courts have increasingly rejected trademark claims based on metadata, at least when there is no real likelihood of confusion and the defendant website is legitimately commenting on the plaintiff's product or service. RealSelf has already removed the allegedly incorrect contact information page, and it looks like more of a mistake than a bona fide attempt to pass anyone off as a Lifestyle Lift provider.
In any event, Real Self is fighting back. The company filed an answer yesterday, alleging that its use of the mark is a fair and nominative use (the latter defense refers to situations where you need to use someone's trademark in order to discuss or comment on a product or service). It also filed counterclaims, alleging that Lifestyle Lift violated its terms of service (and unfair competition laws) by planting shill reviews in the Lifestyle Lift discussion threads.