Tuesday, January 26, 2010

Defamation Lawyer: Traverse Internet Law on Defamation. December 2009.

Defamation Lawyer Disclaimer

The facts are unproven allegations of the Plaintiff and all commentary is based upon the allegations, the truthfulness and accuracy of which are likely in dispute.


RIB CITY GROUP, INC. v. RCC RESTAURANT CORP. AND FRANCIS W. RYAN
MIDDLE DISTRICT OF FLORIDA (FT. MYERS)
2:09-CV-00827
FILED: 12/23/2009

How can your business legally publish potentially defamatory statements about a competitor? The answer is – in a lawsuit. There are litigation immunities for statements made in the context of litigation. When you consider the consequences of this litigation exception in the context of the online world, one can easily imagine defamatory comments being posted online in the form of copies of a lawsuit and it would be almost impossible to get that information down off of the web.

Rib City Group operates family style restaurants in Florida. The Defendant is using its name and creating customer confusion. The Plaintiff has not sued for defamation, but sets forth in its lawsuit word-for-word unfavorable reviews about the Defendant posted on the Internet.

The lawsuit alleges violations of the Lanham Act, trade secret violations, and breach of contract. The prayer for relief requests declaratory relief, actual or statutory damages in an amount between $1,000 and $100,000 per domain name, transfer of the infringing domain name, preliminary and permanent injunctive relief, compensatory damages, treble damages, attorneys’ fees and costs. Traverse Internet Law Cross-Reference Number 1404.


JENNIFER EISENBARTH v. FWM LABORATORIES, INC., ET AL.
DISTRICT OF MINNESOTA
0:09-CV-03525
FILED: 12/10/2009

These are “negative option” websites and the defamation claim is interesting in the sense that the alleged false endorsements and attributions appear to disparage the Plaintiff by suggesting her weight loss was something other than hard work and discipline. This is the first case I have seen in which defamation is part of a claim relating to false endorsements. The recent self-policing by Google, MasterCard, and Visa of the negative option and continuation programs that seem to be at the heart of the many of the false endorsement problems on the web should solve at least some of these problems.

Mrs. Eisenbarth is a former plus-size model who appeared as a contestant on “The Biggest Loser”. The Defendants are allegedly using her image and name on websites and fabricating quotes for falsely purporting to speak in the Plaintiff’s voice recommending brands and products she has never used or endorsed. The Plaintiff claims that the false statements have defamed her by attributing her weight loss to Defendants’ products instead of attributing it solely to her weight-loss regimen.

The Plaintiff alleges false designation of origin, false endorsement and sponsorship, and unfair competition under the Lanham Act, deceptive trade practices, unlawful trade practices, appropriation of right of publicity and right of privacy, common law unfair competition/unjust enrichment, and defamation. Plaintiff requests preliminary and permanent injunctive relief and that Defendants withdrawal all advertising, websites, and promotional materials that include Plaintiff’s property, compensatory damages, actual damages, exemplary damages, punitive damages, statutory damages, reasonable attorneys’ fees and costs and any further relief the Court deems just and proper. Traverse Internet Law Cross-Reference Number 1402.


GROUND ZERO MUSEUM WORKSHOP AND GARY MARLON SUSON v. WILLIAM WILSON
DISTRICT OF MARYLAND (GREENBELT)
8:09-CV-03288
FILED: 12/10/2009

Charitable organizations are often informal in structure and operation and seem to have recurring problems with disagreements among the volunteers. These disagreements unfortunately have a high frequency of evolving into very messy situations. If you are considering doing business with a tax-free or a charitable organization make sure that the duties, responsibilities, and obligations of the parties are spelled out in writing in an appropriate contract.

The Ground Zero Museum Workshop is a tax-exempt organization showcasing images and artifacts from the “Recovery Period” at Ground Zero and is featured regularly in the top ten lists of many travel websites. There was an internal falling out between the organization and the webmaster and the webmaster is alleged to have published claims that the individuals running the tax-free organization were lining their pockets and receiving financial compensation. Plaintiff alleges that no such compensation has ever been paid and that these statements are defamatory.

Ground Zero Museum Workshop claims circumvention of copyright protection systems, copyright infringement, conversion, defamation of Gary Marlon Suson and defamation of the museum, tortious interference in a business relationship, and intentional infliction of emotional distress. The Prayer for Relief includes requests for extensive injunctive relief along with statutory damages in an amount no less than $150,000 per copyrighted work infringed and costs, reasonable attorneys’ fees, prejudgment interest, and such other relief the Plaintiffs may be entitled. Traverse Internet Law Cross-Reference Number 1403.


LIGHTS OUT HOLDINGS, LLC AND SHAWNE MERRIMAN v. TILA NGUYEN AND LITTLE MISS TRENDSETTER, INC.
SOUTHERN DISTRICT OF CALIFORNIA (SAN DIEGO)
3:09-CV-02742
FILED: 12/08/2009

One of the unknown impacts of publishing defamatory comments online is the damages that might ensue. If Merriman loses his contract with the Chargers and Wal-Mart, and the jury concludes that these claims were false, the damages are going to be astronomical. Another lesson to be learned when a business is considering publishing anything about a competitor.

The Plaintiff is Shawne Merriman, the San Diego Chargers football player, and the Defendant is Tila Tequila, the Hollywood star. Merriman claims that Tila Tequila has published extensive false information online, including that he sleeps with minors, forces them to take drugs, and manufactures drugs in his own home. Plaintiff claims that as a result of some of the claims made by Tila Tequila online Merriman’s relationship with the San Diego Chargers has suffered and Wal-Mart has delayed its endorsement dealings with the Plaintiff.

The Plaintiff has sued for copyright infringement, trademark infringement, federal unfair competition, dilution of a famous mark, intentional interference with contract, intentional interference with prospective economic advantage, and common law unfair competition. Plaintiffs request preliminary and permanent injunctive relief, actual damages in an amount to be determined at trial, treble damages, exemplary and punitive damages, pre-judgment interest, statutory damages up to $2 million, costs, expenses and fees, restitution, attorneys’ fees, and such further relief as the Court may deem just and proper. Traverse Internet Law Cross-Reference Number 1399.


NTP MARBLE, INC. v. JOHN DOES (1-10), JANE DOES (1-10), AND DOE ENTITIES (1-10)
EASTERN DISTRICT OF PENNSYLVANIA (PHILADELPHIA)
2:09-CV-05783
FILED: 12/4/2009

It is critical that a business constantly monitor the web for defamatory statements. You might be surprised how often negative reviews are actually coming from competitors posing as customers. This is discussed extensively in my “Google Bomb” book.


Plaintiff claims to be one of the fastest-growing providers of fabrication and installation of stone materials in the Northeastern United States. It claims that unknown individuals, believed to be competitors of Colonial, used various websites to anonymously spread defamatory statements about the products and services of the Plaintiff. The Defendants are allegedly executing a coordinated campaign by falsely posing as the Plaintiff’s customers and posting false customer reviews on consumer review websites. Plaintiff alleges that, in totality, this group of Defendants has posted hundreds of fake customer reviews in such a manner.

Plaintiff claims false advertising and false designation of origin and requests preliminary and permanent injunctive relief along with actual damages in an amount to exceed $150,000, treble damages, cost of suit, and attorneys’ fees. Traverse Internet Law Cross-Reference Number 1401.


LAURTREC CORPORATION INC v. DIAMOND REVIEW INC AND JOHN DOE
EASTERN DISTRICT OF WISCONSIN (MILWAUKEE)
2:09-CV-01124
FILED: 12/03/2009

Unlike fake “review” forums or websites, Diamond Review, Inc. appears to be a legitimate forum hosting allegedly defamatory statements. Section 230 of the Communications Decency Act provides that website with immunity. The interesting approach taken by the Plaintiff in this case is to claim to breach of contract because the “terms of service” on the Diamond Review website promises to remove any false, misleading or inaccurate information. An argument can be made that if the Plaintiff participated in the forum the terms of this contract could be binding and require the removal of the posts. Pay particular attention to the commitments you make in your terms of service and make sure that your promises are consistent with your actions and policies.

The Plaintiff is a designer, producer, marketer and seller of fine jewelry products. Diamond Review is a forum in which an unknown Defendant posted allegedly defamatory statements about the Plaintiff and its products.

The lawsuit alleges federal unfair competition, defamation, common law defamation, and breach of contract. The prayer for relief includes requests for preliminary and permanent injunctive relief, a retraction of the false statements through the same channels, an accounting of profits, actual damages, treble damages, cost and reasonable attorneys’ fees, and any further relief the Court deems just. Traverse Internet Law Cross-Reference Number 1400.

3 comments:

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