Established 1958 ~ Hardball Business Litigation & Complex Negotiations

Eastern District PA Court Finds Sites Reviewing Products are not Engaged in Commercial Speech

On May 4, 2018 the United States District Court for the Eastern District of Pennsylvania held that certain websites that engage exclusively in reviewing consumer goods are not engaged in “commercial speech” and are not in violation of trademark law. GOLO, LLC v. HighYa, LLC, No. CV 17-2714, 2018 WL 2086733, at *1 (E.D. Pa. May 4, 2018). Plaintiff GOLO owns and operates a weight loss program which had been reviewed on both Defendants, HighYa and BrightReviews, websites. Plaintiff alleged that the reviews posted by Defendants and consumers on their sites were fraudulent and harmed its business. Neither Defendant sells any goods from their sites and both derive most, if not all, of their revenue from web traffic and advertisements on their sites. Plaintiff brought a claim for false advertising and trademark infringement under the Lanham Act as well as state law libel and unfair competition claims.

The Eastern District dismissed Plaintiff’s claims based upon the fact that Defendants did not engage in commercial speech. The court explained that to sustain a claim under the Lanham Act regarding issues of false advertising or false association it is required that such speech made be commercial. To identify if speech is commercial a court must decide “whether the speech (i) is an advertisement, (ii) refers to a specific product or service, and (iii) whether the speaker has an economic motivation for the speech.” Id. The main dispute was whether prongs (i) and (iii) were met by way of Defendants’ online reviews. Relying on a decision in the Eleventh Circuit, the Court reasoned that although Defendants were economically benefitted by consumers trafficking their sites and reviews, “the financial benefit is merely incidental to the content of the reviews.” Defendants did not directly make recommendations regarding Plaintiff’s program. Further Plaintiff could not cite to specific evidence of how Defendants’ reviews directly and negatively harmed business.

The Court went on to dismiss the trademark infringement or false association claim on the grounds that Plaintiff had not sufficiently alleged that Defendants’ use of Plaintiff’s name was “likely to cause consumer confusion.” The trade libel claim and unfair competition claims were dismissed due to such claims being time-barred and Plaintiff inadequately pleading falsity. The Motion to Dismiss on behalf of both Defendants was granted.

For more information, please call our Philadelphia trademark lawyers at Sidkoff, Pincus & Green at 215-574-0600 or submit an online inquiry.