BidZirk LLC v. Smith [1]

BidZirk, LLC is a reseller of items on eBay. Philip Smith contacted the company and engaged it to sell certain items on his behalf. Unhappy with the prices that he received, Smith published a four-part blog posting entitled "Special Report: You Gotta Be Berserk To Use An eBay Listing Company! The Whole Story [2]." In the post, Smith depicted his negative experience with BidZirk and his interactions with the company's president, Daniel Schmidt. In the course of this discussion, Smith reproduced BidZirk's logo and made snarky comments about it. He also discussed more generally the positive and negative aspects of using an eBay listing company, such as BidZirk, and provided a checklist for readers to consult in deciding whether to do so. Additionally, he linked to an article on another website that discussed Schmidt and Patterson's upcoming wedding and contained a photograph of them.

Bidzirk, Schmidt and Patterson sued Smith in federal court in South Carolina in early 2006. The complaint included claims for violations of the Lanham Act (BidZirk), defamation (Schmidt), and "invasion of privacy" (Schmidt and Patterson). The "invasion of privacy" claim originally appeared to be a claim for misappropriation of name and likeness, but the plaintiffs adopted a "false light" theory in briefs opposing summary judgment.

BidZirk moved for a preliminary injunction barring Smith's use of its trademark and the district court denied the motion. The district court adopted the Report and Recommendations of the magistrate judge, which concluded that Smith's blog post fit the statutory exemption to trademark dilution for "news reporting or news commentary." See BidZirk v. Smith [3], No. 6:06-00109 (D. S.C. Apr. 10, 2006) ; see also 15 U.S.C. § 1125(c)(4)(C) [4]. BidZirk appealed, and the Fourth Circuit affirmed the district court.

Update:

9/26/2007 - Smith filed a motion for summary judgment.

10/22/2007 - The district court granted [5] summary judgment to Smith, reaffirming that Smith was entitled to the statutory exemption for "new reporting and news commentary." It also sanctioned the plaintiffs' counsel $1000 for filing and refusing to withdraw a "lis pendis" on Smith's condo.

2/19/2008 - Smith filed a letter [6] request for a hearing regarding sanctions. Court denied the request.