Third Circuit Expresses Skepticism About Evidentiary Value of Blog Posts in Lanham Act Lawsuits

On July 26, a Third Circuit panel, in a “not precedential” decision, expressed skepticism concerning the evidentiary value of blog posts, noting (in what was arguably dictum) that “this sort of evidence” will often be of “only limited value.” ¹QVC Inc. v. Your Vitamins Inc., No. 10-4587, 2011 WL 3099249, at *3 (3d Cir. July 26, 2011) (not precedential) (“QVC”) (82 PTCJ 469, 8/5/11). Under Rule 32.1 of the Federal Rules of Appellate Procedure, “not precedential” decisions can still be cited as precedent. The QVC opinion went on to observe that the use of false identities in internet forums “is now a well-known tactic,” and that “[e]ven if a poster is ‘legitimate,’ doubts will often remain as to the sincerity of the comment.” Id. (citing media sources).

This QVC dictum ²For a recent debate over what constitutes dictum in a judicial opinion, see the majority and concurring opinions in Barclays Capital Inc. v. Theflyonthewall.com Inc., No. 10-1372-cv, 99 USPQ2d 1247 (2d Cir. June 20, 2011) (82 PTCJ 253, 6/24/11). is worth exploring, as it represents useful guidance regarding the possible use of blog posts as evidence of consumer views and reactions in Lanham Act litigation as a substitute for formal consumer surveys.

The Third Circuit’s decision, by Judge Julio M. Fuentes, affirmed the denial of a motion for a preliminary injunction in a Lanham Act lawsuit alleging false and misleading advertising. ³The plaintiffs also asserted parallel state law claims for the same conduct. The plaintiffs, QVC Inc., operate the well-known television marketplace, the QVC Shopping Network. The defendants, including an individual, Andrew Lessman (“Lessman”), market dietary supplements. ⁴See QVC Inc. v. Your Vitamins Inc., 714 F. Supp. 2d 291, 96 USPQ2d 2008 (D. Del. 2010), aff’d, QVC. For convenience of reference, the district court’s decision will be referred to as “Your Vitamins.”

For several years, Lessman marketed his supplements on QVC network, but later switched to Home Shopping Network. In January 2010, the QVC Shopping Network introduced a new line of dietary supplements to take the place of the Lessman line. In response to that launch, Lessman made several blog posts highly critical and unflattering of various aspects of the new QVC product line, including accusing QVC of trademark infringement.

On Feb. 5, 2010, QVC filed a lawsuit in the U.S. District Court for the District of Delaware and moved for a temporary restraining order and a preliminary injunction, arguing that various of Lessman’s posts were literally false, and alternatively, mislead consumers. Citing controlling and well-known Third Circuit authority, Judge Sue L. Robinson first analyzed the alleged false statements for literal falsity, concluding that there was sufficient ambiguity in each that none could be found either literally false or false by necessary implication. ⁵Your Vitamins, 714 F. Supp. 2d at 297-301.

Turning to the assertion that the challenged statements conveyed false implied claims (again citing well-known and controlling Third Circuit law), the district court noted that the “tendency to violate the Lanham Act by misleading, confusing or deceiving should be tested by public reaction.” ⁶Id. at 298 (citation omitted). As evidence of the “public reaction,” QVC relied on responsive blog posts on Lessman’s blog, 67 posts in response to one article containing challenged statements and 50 in response to another. The district court proceeded to examine the blog posts, and concluded that very few supported the plaintiffs’ proffered interpretation of the challenged claims. ⁷Id. at 301-02. The district court accordingly denied the motion for a preliminary injunction, finding that the QVC plaintiffs had failed to meet its burden of showing probable success on the merits. ⁸Id. at 302.

In a side note, the district court made the following observations with respect to the evidentiary value of blog posts:

The court need not definitively determine, therefore, whether blog posts should be deemed relevant and credible evidence (generally and, in this context, as evidence of consumer confusion)—an issue of first impression for this court. Blog posts such as those in this case may be more reliable than broad-based surveys, insofar as they represent direct feedback from consumers specifically interested in the product(s) at issue, although concerns regarding such posts’ authenticity are not ill-founded. ⁹Id. at 302 n.19.

Given that the district court did analyze the blogs, and relied on that analysis for its holding, one could take the footnote observations as support for the use of blog posts in Lanham Act lawsuits as evidence of the views of consumers. One can speculate that this interpretation is what led Fuentes to add to the Third Circuit’s panel decision his reservations concerning the evidentiary value of blogs.

In that decision, the court affirmed the denial of the preliminary injunction on the issue of implied false claims by agreeing with the District Court’s factual analysis of the blog posts. The court then, however, proceeded to express far greater skepticism toward the use of blog posts than had the district court.

In its decision, the district court had observed that “[c]ourts have reached differing conclusions on the issue” of the admissibility of blog posts. ¹⁰Id. (citing two district court decisions). Examination of the cited cases, however, shows that in both, the blog posts had been offered by a trademark holder to prove actual confusion in trademark infringement cases.

In one, while granting the plaintiff’s motion for a preliminary injunction, the court added:

The Court is concerned, on this record, that the blog entries lack sufficient indicia of reliability. Nothing is known about the persons who made the entries, about whether they are related in any way to either party or whether they are describing true events and impressions. Moreover, the authors’ meaning and the import of the blog entries are far from clear. ¹¹Blue Bell Creameries LP v. Denali Co., No. H-08-0981, 89 USPQ2d 1146, 1150 (S.D. Tex. July 31, 2008) (76 PTCJ 558, 8/15/08).

In a footnote, the court in Blue Bell noted that its rejection of the blog posts “should not be construed as a ruling by the Court that entries on Internet blogs could not, on a different record, be reliable and admissible.” ¹²Id. at 1150 n.4. In the other case cited by Robinson in Your Vitamins, the court quoted from a blog comment in finding that the actual confusion factor weighed in favor of a finding a likelihood of confusion. ¹³See Volkswagen AG v. Verdier Microbus and Camper Inc., No. C 09-00231, 2009 WL 928130, at *4 (N.D. Cal. Apr. 3, 2009).

Whether or not either or both of these rulings were correct, their relevance to the issue of whether challenged promotional statements convey implied claims is questionable, given that both concerned the issue of actual confusion in a trademark infringement lawsuit. On an analogous issue, on appeal in QVC, the plaintiff argued that the district court had erred rejecting the materiality of the few blog posts that showed confusion, citing cases that had held that even a single instance of confusion could support a finding of liability.

The Third Circuit rejected this logic, noting that every case QVC had cited in support of this argument was a trademark infringement case, which Fuentes characterized as not relevant as they concerned “deception[s] under the other branch of the Lanham Act.” ¹⁴QVC, 2011 WL 3099249, at *3 n.2.

In the view of the authors, Fuentes correctly distinguished between the Lanham Act’s “two branches.” Whether or not blog evidence might be admissible under a hearsay exception as evidence of actual confusion, ¹⁵See generally 4 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition §23:15 (4th ed. 2011) trademark precedents are of little use in deciding whether a plaintiff has met its “‘burden that the advertising tends to deceive or mislead a substantial portion of the intended audience.’” ¹⁶QVC, 2011 WL 3099249, at *3 n.2 (citation omitted).

One can make a strong argument that Fuentes did not go far enough with respect to the narrow issue before the court. In the view of the authors, under no circumstances should blog posts be considered a proper substitute for well conducted consumer research on the issue of what messages are being communicated by ambiguous promotional assertions.

In other words, if a court believes that consumer research is necessary on the implied-claim issue, blog posts should never be considered as a substitute for such research. The goal of the research is to determine what messages are being communicated to those in the target audience.

Even though the blog posts on the surface seem logically related to the issue because the posts are from individuals who presumably have seen the allegedly offending promotion statements, it is difficult to see how blog posts can properly address that issue, given the self-selected nature of those responding. In this connection, in his discussion of the limited value of blog posts, Fuentes observed that “even if a poster is genuine and making a comment in good faith, whether he or she would fall in to the universe of consumers whose opinions are relevant (i.e., those who are or potentially might be purchasers of the products in question) often cannot be known.” ¹⁷Id. at *3.

Thus, even if a court were to find that the blog posts are sufficiently trustworthy—which we doubt—blog posts should not be a substitute for advertising communication surveys. It is well established that any survey is admitted because it meets a rigorous, well defined standard. See
,
e.g., Schering Corp. v. Pfizer Inc., ¹⁸189 F.3d 218, 51 USPQ2d 1705 (2d Cir. 1999)(58 PTCJ 514, 8/26/99). which instructed courts to consider whether:

(1) the “universe” was properly defined, (2) a representative sample of that universe was selected, (3) the questions to be asked of interviewees were framed in a clear, precise and non-leading manner, (4) sound interview procedures were followed by competent interviewers who had no knowledge of the litigation or the purpose for which the survey was conducted, (5) the data gathered was accurately reported, (6) the data was analyzed in accordance with accepted statistical principles and (7) the objectivity of the entire process was ensured. ¹⁹Id. at 225 (quoting Toys “R” Us Inc. v. Canarsie Kiddie Shop Inc., 559 F. Supp 1189, 1205 (E.D.N.Y. 1983)).

Blog posts do not meet any of these criteria. Blogs do not pose questions in the survey sense, but rather, invite posters to post anything they desire, thereby certainly not meeting the “sound interview procedures” requirement.

Nor are posts made under double-blind conditions, but rather by individuals reacting to a very biased stimulus, which could motivate either staunch followers or opposers, and not necessarily reflect sincerely held views. Moreover, as noted, blog posts are not representative samples of a defined universe.

Accordingly, permitting blog posts to substitute for communication surveys makes little sense in light of the nature of blog posts and the nature of the question of what advertising messages are being communicated to a defined target population. In any event, the Third Circuit’s decision is helpful precedent for those opposing the offer of such evidence in a Lanham Act lawsuit.