The companies — software developer Ascentive and mattress manufacturer Classic Brands — alleged in court papers that their trademark was violated by PissedConsumer because it used their companies’ names in URLs like “ascentive.pissedconsumer.com.”
Ascentive and Classic Brands also said their trademarks were violated by PissedConsumer’s search optimization efforts, which allegedly included tactics like making “excessive use” of brand names in Web site text and code. The gripe site also allegedly created Twitter accounts that post links to old reviews.
PissedConsumer denied using such SEO methods. Company co-founder Alex Syrov says the company posts to Twitter whenever users make new comments on reviews, although the reviews themselves were previously published.
Ascentive says in its complaint that some of the negative reviews dated back more than one year — which would coincide with the time the company was under fire in Washington State. In January of this year, Ascentive agreed to pay $78,000 to settle a complaint by the Washington Attorney General alleging that the company tricked people into installing adware. Ascentive denied wrongdoing in that matter.
Ascentive and the mattress company sued PissedConsumer for trademark infringement and sought an injunction banning PissedConsumer from using their names in a way that called attention to the bad reviews. In general, gripe sites (like other Web sites) are immune from liability for many legal claims — including defamation — based on users’ posts. But Web sites are not immune from liability for intellectual-property claims like trademark infringement.
This week, U.S. District Court Judge Leo Glasser in the Eastern District of New York rejected the companies’ request for an injunction against the gripe site. He ruled that neither company had shown that PissedConsumers’ alleged methods were likely to result in consumer confusion — which is a central component of trademark infringement.
“While it may be true that PissedConsumer has engaged in sharp-elbowed and perhaps unethical SEO tactics meant to make its webpages appear more relevant to search engines, such as Google or Yahoo! than they actually are, that fact has no bearing on the inquiry here — whether PissedConsumer has attempted to sow confusion as to the source, origin, or affiliation of its products and services with those of plaintiffs,” Glasser wrote in a 45-page opinion issued Tuesday.
Glasser added that the gripe site’s placement on the search results’ pages “is ultimately irrelevant because there is no likelihood that a consumer who visits PissedConsumer pages would believe that Ascentive or Classic sponsored or otherwise approved of the use of their marks on pages with such decidedly negative names and content.”
The lawsuit itself is ongoing, and Glasser said in the ruling that the companies might be entitled to an injunction once more evidence emerges.
Thanks to Wendy Davis at Online Media Daily, and
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