Judge Joshua D. Wolson of the United States District Court for the Eastern District of Pennsylvania recently dismissed a Lanham Law suit that challenged critical comments on a blog (not this one!). The case was brought by plaintiff Crash Proof Retirement, a retirement investment advisor who came under criticism. The defendant author of the blog post was a former stockbroker.
In dismissing the lawsuit, the court determined that “arm’s length reviews made without any economic motivation do not constitute commercial speech simply because they could have an impact on someone’s business or livelihood.” and cannot be the basis of a claim under the Lanham Act. Quoting “the immortal words of [pop singer] Taylor Swift, ”Judge Wolson wrote:“ Even though ‘haters are going to hate, hate, hate…’, sometimes it is enough to ‘shake up’. ” Crash Proof Retirement, LLC vs. Paul M. Price, Case n ° 2: 20-cv-05906-JDW (ED Pa. April 13, 2021).
The blog post in question criticized the complainant’s investment services. As the court found, the author went so far as to imply that the complainant’s business was a scam. After discussing the doubts about the Crash Proof Retirement strategy, the article describes a low risk alternative strategy. The plaintiff brought an action under Lanham Law, claiming that the author of the blog post made false or misleading statements about Crash Proof while advertising and promoting a marketing strategy. alternative investment.
The court ruled, however, that the plaintiff’s legal theory was not shockproof, since the blog post did not constitute “commercial speech” within the meaning of Lanham Law. In deciding whether the speech is commercial, courts consider three factors: (1) whether the speech is an advertisement; (2) whether it is a specific product or service; and (3) whether the speaker is economically motivated.
In this case, the court concluded that only the second of the three factors was satisfied. Although the message referred to the complainant’s specific product or service, it did not advertise or promote any product. There is also nothing to indicate that the author has an economic motivation. The message criticized the applicant’s services and described an alternative investment strategy, not associated with a particular product or competitor. The court ruled that the mere mention of a specific product or service could not overcome the lack of advertising content or economic motivation, and did not deliver the commercial writing speech.
The court was also not impressed by the argument that the blog post presented an idea that competed with that of the plaintiff, noting that “[t]The mere fact that the parties can compete with each other in the ideas market is not sufficient to invoke Lanham Law. The court observed that the Lanham Act is not intended to stifle criticism of goods or services by someone who is not engaged in marketing or promoting a competing product.
Judge Wolson’s opinion is a reminder that Taylor Swift gives good legal advice and that while negative press can harm a business, that in itself does not qualify for redress under Lanham Law.
© 2021 Proskauer Rose LLP. National Law Review, Volume XI, Number 131