News article nominative fair use, not commercial advertising or promotion

1800 Get Thin, LLC v. Hiltzik, 11-cv-00505 (C.D. Cal. July 25, 2011) Plaintiff markets 1800-GET-THIN to consumers seeking to do the obvious. People who call get a free seminar about the Lap Band surgical procedure. Plaintiff is seeking registration for 1 800 GET THIN as a mark. It sued defendants, including the LA Times, for publishing seven negative articles about its business, alleging trademark infringement and false advertising under the Lanham Act. It alleged that Hiltzik "is of questionable character and that he was motivated to write the articles because of a personal vendetta" against plaintiff. It further alleged that the LAT published the articles because it receives ad fees from plaintiff's competitors. (Note the similarity to the allegations in the recent PennyAuctionWatch case, and compare the application of the plausibility standard on a motion to dismiss. Is this an example of new media not getting the same benefit of the doubt as old media?) One of the relevant articles includes this passage: Renteria's death may finally prompt California's medical regulators to take a close look at the weight loss surgeries marketed by an outfit called Top Surgeons through the 1 800 GET THIN number . . . The Medical Board of California informed Renteria's family [on] July 27 that it was reviewing the medical care she had received from Dr. Atul Madan, who is identified by the coroner as her surgeon at a Beverly Hills clinic connected to the billboard campaign. Plaintiff argued that the article would mislead readers into believing that it is a provider of medical services and was responsible for the harm suffered to such patients. Plaintiff also amended its complaint to name parties who posted allegedly false or misleading comments on the LA Times' website (for which Section 203 of the CDA would provide a defense to any non-IP claims). A defendant with the screen name Adrian_Dallas wrote: "And I don't want to be inundated in the months and years to come by the inevitable sad little lawsuits of those fleeced by the clearly (almost?) criminal con-men who own 1-800- GET-THIN. This allegedly falsely equated plaintiff with a provider of medical services. (Hunh?) The court began by kicking out the false designation of origin claims. On the pleadings, defendants were entitled to the nominative fair use defense. It's (1) necessary to refer to plaintiff, (2) no more than reasonably necessary, and (3) does nothing to suggest sponsorship of defendants' use of the claimed mark "because the articles and comments, by Plaintiff's own admission, do not portray Plaintiff in a positive light." (I'd be happier without that "because," since it's a nominative fair use since it's in a news story about plaintiff, laudatory or not, but ok.) Assuming that nominative fair use didn't apply, there was still no claim. "The mere fact that people could read Defendants' articles or comments and conclude that Plaintiff engages in medical procedures is too speculative." (Also, why would that be false designation of origin? The court doesn't waste its time on this theoretical question for such a clearly terrible claim.) Plaintiff didn't provide sufficient allegations to demonstrate that the articles and comments were causing other people to arrive at that conclusion. Instead, people were critiquing the medical services "offered in connection with Plaintiff's marketing service." The court pointed out that, of 29 user comments, no more than two even seemed to suggest that plaintiff provided medical services. Along with defendant Adrian_Dallas, defendant AlanSmyth1 wrote: "The 1800 GET THIN or GET SLIM group have had so many different surgeons go through their facility. How can these sub-standard surgeons continue to practice in a facility that continues to change their [sic] name? . . . Unfortunately, innocent patients will be mesmerized by their continuous billboard and tv ads. '1 800 GET SLIM-Y and SHADY' is more appropriate for this group." (So apparently they're both likely consumers whose confusion is relevant and defendants? Not sure how that works.) The court pointed to the thinness of the distinction plaintiff was making: "Given that Plaintiff is actually the marketing service for the Lap Band procedure, and operates as the channel by which people obtain the medical procedure, it should not be surprising that a couple of individuals would view Plaintiff as the actual medical provider. Assuming there are a handful of 'confused' individuals out there, there is no reason to believe from Plaintiff's allegations that the article, and not Plaintiff's own business activities, is responsible for such confusion." False advertising: a news report including a person's trademark isn't commercial speech, nor is it in connection with commercial advertising or promotion under the Lanham Act. The allegations were also too speculative to state a claim, for the same reasons as with the trademark claims. (It would be interesting to see a full discussion of the "motivated by desire to service advertisers" allegations. The court here plainly finds that allegation insufficient-but is it insufficiently plausible–which I'd argue is factually misguided, since these things do happen-or simply insufficient even if true? The difference for the scope of ad-supported media's freedom of operation, and for advertisers' ability to launder claims through third parties, is significant.)

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