This article first appeared in Cyberlaw Currents, a Frankfurt Kurnit legal blog.
At least when it comes to trademark and false advertising cases, reader comments to blog posts may not be worth much more than the "paper" on which they are written. Affirming the Delaware district court's decision, the Third Circuit Court of Appeals stated that user comments, as a general matter, were insufficient to establish consumer confusion, a crucial element of deceptive advertising claims under state and federal law. Such comments, the court explained, are difficult to authenticate, easy to manipulate, and do not necessarily indicate the opinions of the relevant universe of consumers.
The comments in question were posted by readers in response to a series of blog posts written by defendant Andrew Lessman about dietary supplements marketed by his company, ProCaps Laboratories, and those by his competitor, plaintiff QVC, Inc. From 1992 to 1997, Mr. Lessman sold his company's dietary supplements through the QVC television network and website. He left QVC in 1997 and began working for its rival, the Home Shopping Network ("HSN"), where he developed the hugely successful supplement Healthy Hair Skin and Nails.
In 2006, Mr. Lessman began negotiating a possible return to QVC, during the course of which he informed the company of his product's success. The deal ultimately fell through, and Mr. Lessman stayed with HSN. In January 2010, however, QVC launched a supplement called Hair, Skin and Nails to compete with Mr. Lessman's product.
Within days of QVC's launch, Mr. Lessman posted a series of blog posts on his website criticizing QVC supplements, in particular Hair, Skin and Nails. The posts attacked the quality, efficacy and safety of the QVC products, while promoting Mr. Lessman's supplements. Ironically, the earlier posts also railed against QVC for exploiting the potential confusion between its new product Hair Skin and Nails and Mr. Lessman's similarly named supplement Healthy Hair Skins and Nails.
Shortly after these posts were published, QVC sued Mr. Lessman and his company for false advertising and deceptive practices under federal and state law based on the statements made by Mr. Lessman on his blog. QVC sought an immediate order that Mr. Lessman remove the posts, but the district court refused, ruling that QVC had not demonstrated the requisite likelihood of success. Examining each of the controversial statements in Mr. Lessman's articles, it concluded that they were not literally false. Although perhaps debatable, the court found that each statement by Lessman had sufficient substantiation at this stage of the litigation.
The court also rejected QVC's argument that the challenged statements were true, but nevertheless likely to mislead consumers. Recovery under this theory requires evidence of actual consumer confusion resulting from the statements. Rather than submitting traditional evidence of confusion such as expert testimony and survey results, QVC offered 117 reader comments posted in response to Mr. Lessman's blog posts, purporting to demonstrate how the posts had mislead consumers about QVC products. The court found that while most of the comments were "negative to QVC (as compared to simply supportive of Lessman), only a few correlate a decision not to buy [QVC's product] with Lessman's particular statements...." Accordingly, they did not satisfy the element of "actual consumer confusion" required to obtain relief.
On appeal, the Third Circuit agreed that Mr. Lessman's posts were neither literally false nor misleading. The Court of Appeals noted further that "even were the [user] comments more abundant, this sort of evidence will often be of only limited value." In addition to questions as to the identity and motives of those who posted comments, such evidence of consumer confusion is questionable because it cannot be known whether the poster is part of the relevant community (i.e., purchasers or potential purchasers of the products in question).
The Third Circuit's decision certainly does not foreclose the use of reader comments to establish consumer confusion – its holding was limited to the clearly inadequate comments submitted as evidence by QVC, therefore its criticism of comments in general has no precedential value. Nevertheless, the Third Circuit appears to be the first appellate court to weigh in on the utility of user comments in this context, and its decision may guide other courts on the issue.
Regardless of their use in evidence, user comments often provide an entertaining, if not informative, debate on the merits of a given issue, as illustrated by those made in response to the blog post by Mr. Lessman only days after QVC filed suit, entitled "The QVC Lawsuit Is Completely Without Merit."
This article first appeared in Entertainment Law Matters, a Frankfurt Kurnit legal blog.
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