Monthly Archives: October 2014

Is The ACLU Overdoing It With Its Revenge Porn Law Case In Arizona?

Arizona revenge porn law
The ACLU is suing Arizona over the state revenge porn law.

The ACLU is suing Arizona over the state’s revenge porn law. The charge: the statute doesn’t pass the First Amendment sniff test. Could Arizona’s revenge porn statute be better worded? Absolutely. Is the ACLU ignoring current provisions in the statute that will most likely prevent the worst-case-scenario examples used in their claim? Arguably, yes.

Arizona recently passed a revenge porn law. Good, right? Well, yes; but, many people are worried that the new statute could be used to censor art and photojournalism.

The ACLU, in conjunction with a group of booksellers and stores, sued the state, arguing that Arizona’s revenge porn law is in conflict with the First Amendment of the U.S. Constitution. The case, Antigone Books v. Horne, could have a significant effect on the wording of revenge porn laws moving forward.

But is it a valid case? Is the ACLU making a mountain out of a mole hill?

If Arizona’s revenge porn law remains un-edited, the ACLU warns that the following could happen (via this Forbes.com article):

  1. A college professor in Arizona, giving a lecture on the history of the Vietnam War, projects on a screen the iconic Pulitzer Prize-winning photograph, “Napalm Girl,” which shows a girl, unclothed, running in horror from her village.
  2. A newspaper and magazine vendor in Arizona offering to sell a magazine which contains images of the abuse of unclothed prisoners at Abu Ghraib.
  3. An educator in Arizona using images, taken from the Internet, of breast-feeding mothers, in an education program for pregnant women.
  4. A library in Arizona providing computers with Internet access to its patrons and, because no filters could effectively prevent this result, the library patrons are able to access nude or sexual images.
  5. A mother in Arizona sharing with her sister, in the privacy of her home, a nude image of her infant child.
  6. A sexual assault victim in Arizona showing a photograph of the naked assaulter to her mother.

In a National Law Journal article, Michael Bamberger explains his problem with Arizona’s revenge porn law:

In its broadest sense, this is a supposed revenge-porn statute that does not require revenge. There is no intent requirement, and it covers far more than porn. That’s why it concerns booksellers, publishers, etc.

The statute also has problems with vagueness. There’s an exception for photos taken in a commercial or public setting. It’s not clear what that means [and] the bookseller might not have a way of knowing the circumstances of how the photo was taken.

But here’s the rub: the Arizona law makes exceptions for “images involving voluntary exposure in a public or commercial setting.” Theoretically, though, it’s still not an air-tight provision, and it could lead to censorship. To wit: soldiers could argue “lack of consent” if their images appear in a “leaked government image of a graphic nature” (think Guantanamo Bay scandal).

Antigone Books v. Horne is a curious case, and to be honest, we don’t have a dog in this race; both sides have compelling enough arguments. But since we’re an Arizona-based law firm that handles revenge porn, we’ll be tracking it.

If you are dealing with a revenge porn or thedirty.com problem, get in touch with Kelly / Warner Law today. We’ve helped hundreds of women get their pictures taken offline. Reach out today to begin the conversation.

Can You Trademark A Common Word: Seidman v. Chobani

Can you trademark a common word?
Is it possible to trademark a common word?

It’s a legal showdown between the Grand Poobah of corporate do-goodery and a small-town-saving yogurt company. Simple trademark rights are at the center of Dov Seidman v. Chobani, but one of the suit’s central legal questions – involving Twitter marketing — is teasingly complex.

Who’s Who: Dov Seidman and Chobani Yogurt

Dov Seidman: Corporate Management Guru

Author of “How: Why How We Do Anything Means Everything,” charity luminary and CEO of LRN, Dov Seidman coined the phrase “How Matters” — which he uses in promotional and corporate training materials.

Chobani Yogurt: “American Dream” Business

In 2005, a Greek immigrant saved a small upstate New York town when he took over a failing Kraft Foods factory, and turned it into the HQ of a successful American yogurt brand. What’s different about Chobani yogurt than all the other yogurts? Its texture, which is dependent on how the yogurt is strained.

Droga5: Chobani’s Creative Advertising Team

Partially owned by talent agency William Morris Endeavour, Droga5 is a marketing and design house, and the creative team behind Chobani’s latest re-brand.

Why Is LRN’s Dov Seidman Suing Chobani Yogurt For Trademark Infringement?

“How Matters” is at the heart of the matter:

  • Seidman uses the two-word tagline in his books and company corporate coaching materials.
  • In January 2014, Chobani launched a high-profile marketing campaign – replete with Super Bowl commercial – focusing on what makes Chobani yogurt better than other yogurts. The tag line of the campaign, “How Matters,” speaks to the company’s yogurt sifting technique.

Seidman feels that Chobani’s “How Matters” infringed on his “How” trademark. So, Seidman sued Chobani, plus Chobani’s marketing arm, Droga5.

And lest you think how-mannered Seidman has nothing to do with the suit — that it’s probably the busy work of meddling attorneys — think again. The LRN headman has made it clear that his Chobani battle is more than a legal fight, “It’s a moral fight – it’s a “how” fight.”

Unguard!

Chobani’s Defense Against Seidman’s Trademark Lawsuit: The Word “How” Can’t Be Trademarked; Oh, and We’ve Never Heard Of Seidman

Chobani spokespeople insist Seidman’s case is meritless. Their defense arguments:

  • Seidman should’ve never been granted a trademark on the word “how” to begin with, because its overbroad; and
  • Nobody on Team Chobani/Droga5 had heard of Seidman before or during development of the “How Matters” re-brand campaign; so, how could we have copied. (Though, trademark law isn’t about the elimination of copy-cats, which we’ll get to below.)

Since the lawsuit hit, the food manufacturer also decided to file a formal trademark application for the term “how matters.” Seidman also groused:

“They’re using ‘how’ to convey and connote that they are an ethical company. They are using ‘How’ exactly the way I use it. They’ve appropriated the foundation of my entire philosophy.”

What can be trademarked and what can’t?

Is Chobani right? Is “How” too broad a word to trademark? Yes and no.

Trademark law is less about “you copied my idea,” and more about “don’t confuse the marketplace or consumers.” In order to be granted an official trademark registration, you must demonstrate the unique and transformative nature of the thing you want to trademark.

Dov Seidman was able to trademark the word “how” because he popularly turned an adverb into a noun in the realm of the business consulting trade. But be sure, this is one of those cases where subjectivity and objective law collide.

The Intersection of Trademark Law and Social Media Marketing

The B-plot of Seidman v. Chobani is Chobani’s insistence that nobody from the yogurt company or Droga5 (the marketing team) knew of Dov Seidman’s work. Instead crediting a night out at an open kitchen eatery as the spark for “How Matters.”

But here’s the rub. Seidman can prove that in 2013, Andrew Essex, a Droga5 big-wig, lunched at LRN offices. Also, a few days before Chobani’s super bowl rollout, the company tweeter tweeted:

“@DovSeidman: Thanks for inspiring the world to care about ‘how.’ Can you help inspire the food industry, too?”

Damning, right?

Maybe not.

According to Chobani, Dov’s name was on a media lead-list of “influencers” that “might be worth alerting about the campaign.”

That explanation may sound farfetched to non-marketers and non-business-owners, but marketers and business owners know that Chobani’s justification is 100% feasible. Companies out-source social media tasks all the time.

Besides, lead/media/PR lists have been around since Barnum built his circus.

Which raises the question: legally speaking, what level of familiarity can we assume based on “marketing tweets?”

After all, do you know the philosophies and tag lines for all of your company’s social media followers and friends?

Now, is it a workable legal defense?

Maybe; maybe not. For starters, the tweet was specific and demonstrated an intimate knowledge of Seidman’s work. Moreover, companies are responsible for authorized work published under their brand.

But if Chobani does outsource its social media marketing, the provisions of its outsourcing contract could prove important.

But the question of whether or not a tweet constitutes a relationship is a tricky one, especially in today’s marketplace, where everyone’s “a friend” and a whole lot of businesses aren’t “in technical control” of their social media marketing efforts. In theory, these questions could become the pivotal ones in deciding Seidman v. Chobani.

Speak With A Trademark Lawyer

Kelly / Warner has a successful intellectual property litigation team. We also handle routine copyright and trademark licensing and registration. If you’re in the market for an intellectual property lawyer, get in touch with Kelly / Warner Law.

Can You Trust Yelp Reviews?

Picture of blackboard featuring the word Trust to accompany blog post about lawsuit asking can you trust yelp reviews
Can you trust yelp reviews? Is the site a pay-for-play cauldron of post manipulation?  These are the questions people are considering after the 9th Circuit Court of Appeals published its opinion in Levitt v. Yelp, Inc.

A case that challenged Yelp’s advertising sales practices, the main question in Levitt was whether or not “gripe sites” can manipulate review algorithms as an advertising sales tool.

Ultimately, the judges ruled that review manipulation, as presented in the suit, is a perfectly legal example of “hard bargaining.” The bench also reasoned that consumer review websites aren’t obligated to display positive posts.

Which raises the question: Can you trust Yelp reviews?

Below, we’ll review the case and explain the judges’ decision in favor of consumer review websites.

First, A Little About The Yelp Review System

Honest users post honest opinions about businesses and services, and then Yelp displays every review – good or bad. That’s how Yelp works, right?

Not quite.

There’s a little bit more (or less, depending on how you look at it) to Yelp’s functionality than what meets the eye.

How Do Yelp Reviews Get Removed?

Reviewer Removes

The best way to get a negative review removed from Yelp is by convincing the reviewer to delete it. Oftentimes, people post scathing rants in the heat of the moment. If you let a few days pass, and then approach your detractor politely, common ground can sometimes be found. Identify the problem, and, if reasonable, do everything you can to fix it!

Yelp Removes

Sometimes Yelp removes user reviews that don’t adhere to the site’s terms of service guidelines.

Yelp Filtering Algorithm Removes

All reviews on the Yelp platform are subject to a filtering algorithm. The system doesn’t permanently delete reviews, but it does “hide” them.

Yelp Review Filtering System Explained

What is the Yelp filtering algorithm? An automated system that controls how reviews appear on the site, Yelp’s formula affects all posts — good and bad. Intriguingly, the algorithm is partially based on a user’s “site clout” (i.e., the more reviews someone posts, the more clout they have).

Yelp executives insist the system is 100% automated. But a band of small business owners believe  it’s something more insidious – namely that Yelp manually tweaks the filtering algorithm to negatively target businesses that opt out of Yelp advertising.

Yelp’s Advertising Opportunities

A major component of Levitt v. Yelp is promotion — specifically, whether or not Yelp penalizes businesses for opting out of advertising.

At the time of this writing, Yelp offers advertising costing between $300 and $1200. Benefits include:

  • Guaranteed premium placement;
  • Ability to pick a positive review that appears front-and-center on your profile page; and
  • Ability to add photos to the page.

What The Class Argued Against Yelp: User Review Manipulation & Advertising Extortion

A group of small business professionals joined forces to legally challenge alleged advertising extortion and unfair business competition by Yelp. Class members argued violations of the Hobbs Act and California’s unfair competition law.

What were the main gripes? The class felt that Yelp:

  • Extorted advertising money by manipulating profile reviews;
  • Purposefully downgraded ratings if a business owner refused to purchase Yelp advertising; and
  • Authored fake, negative reviews as a way to get business owners to purchase Yelp advertising.

In the claim, the class members also argued the ethics of Yelp employee reviewers.

Small Business Owners’ Complaints Regarding “Yelp’s Review Manipulation”

Levitt v. Yelp detailed the experiences of several business owners with Yelp profiles. Below are summaries of those stories.

Boris Levitt: Good Yelp Reviews Disappeared; His Rating Dropped a Full “Star”

Boris Levitt long enjoyed a 4.5 Yelp star-rating. Then, one day, out of the blue, several good reviews vanished from his page.

Perplexed, he called Yelp to inquire about the good-review exodus. According to Levitt, a Yelp employee blamed Yelp’s filtering algorithm (described above), and explained that Boris was out of luck since the filtering system is anonymous and automated.

Two months after the initial call, a Yelp advertising sales representative contacted Boris Levitt. After the pitch, Boris said he was happy with his organic ratings on the site, and then opted against a Yelp advertising package. According to Boris, two days later, his rating dropped a whole star, and several more 5-star reviews disappeared from his page.

Cats & Dogs: After Yelp Removed A Bad Review, Another One Appeared In Its Place

One day, Cats & Dogs Animal Hospital called and asked Yelp to remove an old, negative review from its page. Yelp complied with Cats & Dogs’ request because the request squared with guidelines.

A few days later, another bad review appeared on Cats & Dogs’ Yelp page – a review suspiciously similar to the one Yelp had removed.

Soon after the second criticism posted, Cats & Dogs began to field calls from Yelp’s advertising department. And according to the animal hospital, the sales rep “promised to manipulate [Cats & Dogs’] listing page in exchange for … purchasing advertising.” Cats & Dogs contends that the Yelp representative promised to “hide negative reviews or place them lower.”

In the lawsuit, Cats & Dogs also explained that the original bad review, which Yelp removed, reappeared after it opted out of advertising.

Mercurio: Yelp Reviews Didn’t Sync With Customer Records

Named claimant Mercurio’s tale was similar to Boris Levitt’s. But unlike Levitt, Mercurio accused Yelp of being the wizard behind several of his bad reviews.

Mercurio insists that several unflattering rants on his Yelp page don’t sync with customer records. Mercurio also swears that a Yelp representative told him, over the phone, that advertising with Yelp helps ratings.

Interestingly – and perhaps detrimentally — Mercurio never named the customer service rep with whom he spoke.

Dr. Tracey Chan: Felt Pressured To Buy Yelp Advertising To Keep Her Rating

According to dentist Tracey Chan, during a sales pitch, a Yelp representative claimed to wield control over reviews and promised to “hide or bury” bad ones in exchange for an advertising purchase.

Initially, Chan declined. A few days later, nine 5-star reviews disappeared from her Yelp profile. Chan’s overall standing plunged from 5- to 3-stars. According to the dentist, when she called to ask about the sharp and sudden decline, a Yelp employee offered “help” if she invested in site advertising.

Chan said she “feared” Yelp would continue to manipulate her business’ page for the worse if she didn’t pony up for Yelp advertising.

Sponsors and Nonsponsors

The class members described themselves as “nonsponsors” and “sponsors.” Nonsponsors were the business operators who opted not to buy Yelp advertising. Sponsors were the people who – at some point – enrolled in a Yelp advertising program.

Why the Court Sided With Yelp in the Online Consumer Review Class Action Lawsuit

Cats & Dogs: Didn’t Protest The Authenticity Of The First Bad Review

In the claim, Cats & Dogs Animal Hospital cited two reviews – one that Yelp removed at Cats & Dogs’ request, and the second, which appeared soon after Yelp “erased” the first one. In the lawsuit, Cats & Dogs argued that the second review was fake and most likely authored by Yelp. Importantly, in the claim, Cats & Dogs did not dispute the authenticity of the first review.

The Levitt v. Yelp panel concluded that a “real customer” could’ve easily posted the second review. As such, Cats & Dogs didn’t provide enough proof that Yelp egregiously and unfairly manipulated reviews, in an effort to extort money by way of an ineffectual advertising plan.

Dr. Tracey Chan: Didn’t Argue That Yelp Advertising Was A “Valueless Sham”

The judges knocked down Dr. Tracy Chan’s arguments because she failed to link Yelp’s alleged rating-manipulation promise to a forced Yelp advertising contract. Moreover, Chan didn’t claim that Yelp’s advertising opportunities were a “valueless sham” or that she was “already entitled to the advertising privileges [Yelp] induced her to buy.” In other words, Chan didn’t connect her reputational harm to a wrongful act on Yelp’s part.

Interestingly, in the opinion, the judges acquiesce that rating manipulation, as a sales technique, may breach some sort of consumer contract, but this particular argument didn’t cut muster.

Mercurio: “It Could Have Been Anyone!”

Though Mercurio couldn’t match several Yelp reviews to a customer, the judges weren’t convinced that Yelp was the fraudulent author. The bench reasoned that the reviews could’ve been written by “a competitor, or a disgruntled customer hiding behind an alias, or an angry neighbor, just to give a few possibilities.”

Can You Trust Yelp Reviews? Technical Legal Reasons The Judges’ Ruled In Favor of Yelp & (a.k.a., Why Review Manipulation Can Be Perfectly Legal)

At face value, these tales of Yelp review woe seem like rock-solid arguments. But when weighed against applicable laws, each one falls short. Here’s why.

  • Review manipulation on Yelp’s part, as described in the cases, doesn’t violate antitrust laws “or otherwise significantly [threaten or harm] competition.”
  • Technically, Yelp and SMBs are not in direct competition. And since all successful legal actions must be based on “legislatively declared policies” – and there is no policy about unfair competition between non-competitors – the argument crumbles.
  • The bench had to consider “Yelp’s alleged authoring of negative reviews.” The court deemed that the plaintiffs didn’t successfully – nor directly – expose Yelp as the author of the negative, false reviews.
  • In response to the extortion claim, the judges reasoned, “unless a person has a pre-existing right to be free of threatened economic harm to induce a person to pay for legitimate services” it’s not extortion. In other words, it’s perfectly legal for Yelp – and other consumer review websites – to control how and when reviews are displayed on their sites. Manipulating them, in it of itself, is not extortion, but instead an example of “hard bargaining.” The judges reiterated this point in the Levitt opinion, explaining, “Extortion requires more than fear.” Additionally, the court ruled: “so long as the alleged extortioner seeks payment for services that have some ‘objective value’,” that party has “a lawful claim to the property obtained.’”
  • The Levitt class used the “Hobbs Act,” but the judges rejected the argument because “purely economic threats don’t violate the Hobbs Act.” Under the law, extortion must include “wrongful” use of “force, violence or fear,” and “manipulation of user reviews, assuming it occurred, was not wrongful use of economic fear.”
  • “The fear of economic loss plays a role in many business transactions that are entirely legitimate,” explained the Levitt The judges also reinforced that the Hobbs Act can only be successfully argued when there is “the exploitation of the fear of economic loss.” The plaintiffs in this suit failed to prove the “exploitation of the fear.”

Is The Yelp Review Manipulation Legal Battle Over? Maybe Not.

All in all, the Yelp judicial panel sided with the consumer review website. However, at the end of the opinion, it left the door open for another go at this issue. The opinion teased:

“We emphasize that we are not holding that no cause of action exists……The business owners have not alleged a legal theory or plausible facts to support the theories they do argue.”

In other words: we’re not saying that consumer review websites aren’t completely faultless in their aggressive advertising tactics, we’re just saying that the arguments made in this claim weren’t 100% foolproof. It was a noble effort, consider our explanations this go around, tweak the claim, and you’ll probably have it.

Don’t expect this issue to go away. But for now, remember this lawsuit when you’re checking out businesses on Yelp. Is a low-rating truly representative of a business? Or is it the product of Yelp review manipulation?

Speak With A Yelp Defamation Lawyer

Are you dealing with Yelp defamation – or another online libel challenge? An attorney can help remedy the situation, quickly. And it may not be as costly as you think.

Should you trust Yelp reviews? It’s up to you. But if you’re a small business owner with a Yelp reputation problem, get in touch. Let’s fix the problem.

UDRP Law: It’s Possible To Win A Federal Lawsuit After A Failed UDRP Ruling

UDRP law attorney
Even if a “UDRP law” ruling goes against you, it’s still possible to win a domain dispute lawsuit.

A recent UDRP settlement proves that it pays to pursue domain dispute lawsuits — even if an initial Uniform Domain Name Dispute panel ruling doesn’t go your way.

Before You Explain This Domain Dispute Case, Please Explain the UDRP Process

Established by the Internet Corporation for Assigned Names and Numbers (ICANN), the Uniform Domain Name Dispute Resolution Policy (UDRP) is an international, quasi-judicial procedure through which parties can challenge ownership of  URLs. Decisions are based on applicable intellectual property statutes and common law guidelines.

Under the UDRP process, claimants pay to convene case review panels comprised of intellectual property and legal experts. The more panelists requested, the more money it costs.

UDRP law analysts consider trademark issues, evidence of bad faith intent and the legitimate interests of each party in respect to the domain name under review.

In most cases, both parties agree to the UDRP decision, but a defendant can move forward with a federal lawsuit if that panel sides with the claimant.

More UDRP Law: Can You Get A Domain Name Back If It Lapses? Click here to find out.

Domain Registrar Lost UDRP Complaint, But Won In Federal Court

Austin Pain Associates – a pain management medical practice in Texas — filed a UDRP claim review request over AustinPain.com – a URL owned by Hughes Domains. In a surprise decision, the UDRP panel sided with the medical practice and ordered Hughes to hand over the URL.

Legal watchers widely condemned the UDRP decision in favor of Austin Pain Associates. So, Hughes filed a federal domain dispute lawsuit.

In the end, the federal court sided with Hughes, and Austin Pain handed over $25,000.

But AustinPain.com now forwards to the APA’s website, which must mean Hughes and the medical group made an additional deal outside of the lawsuit settlement.

It just goes to show that even if you lose an ICANN UDRP ruling, it’s sometimes worth it to move forward with an intellectual property lawsuit.

Speak With A Domain Dispute UDRP Law Attorney

Are you facing a domain dispute legal challenge? Consult an experienced UDRP attorney about your situation.

We’ll solve your domain dispute or UDRP law issue quicker and more efficiently than a mega-firm – but for a fraction of the price.

California’s Yelp Law: What Every Business Owner (& Consumer) Needs To Know

picture of cell phone on Yelp to accompany a blog post about new California Yelp law
The California Legislature passed Assembly Bill 2365 – a.k.a., the “Yelp! Bill.”

Free Speech advocates are thrilled about California’s Yelp law, but some business owners think it’s an example of unnecessary government meddling.

What Is The California Assembly Bill 2365 – (a.k.a., The Yelp Bill)?

You may have read that California’s “Yelp Bill” legalizes online defamation. Not true. Internet libel is still a civil offense in The Golden State.

What the new California Yelp Law does do is outlaw anti-disparagement clauses in business and consumer contracts. Simply stated:

  • Contracts that confer patients’ or customers’ intellectual property rights for online reviews is now ineffectual in California.
  • Contracts forbidding consumers or patients from voicing negative opinions online is now ineffectual in California.

Punishment For Breaking The California Yelp Law

Violators of the California Yelp Law can be fined up to $10,000; $2,500 for the first violation and $5,000 for recidivist offenders, in addition to “willful, intentional or reckless violations.”

Who gets the money that violators are forced to fork over?

Either the consumer who — or government department that — brought the charges.

From the Yelp Bill:

“When collected, the civil penalty shall be payable, as appropriate to the consumer or to the general fund of whichever governmental entity brought the action to assess the civil penalty.”

Does This Mean That Forum & Website Operators Are Forbidden From Removing Defamatory Material?

No. The California online consumer review law specifically addresses website operator rights:

“[The new statute] shall not be construed to prohibit or limit a person or business that hosts online consumer reviews or comments from removing a statement that is otherwise lawful to remove.”

In plain English: The Yelp law doesn’t forbid website operators from removing defamatory comments from their sites. Nor does the law mean that websites can’t curate their content.

Is there Any Chance That The California Yelp Law Will Go National?

Yep. California Rep. Eric Swalwell has plans to take the law Federal. Whether or not it makes it past the beltway’s gate keepers (a.k.a., lobbyists), remains to be seen.

Consult A Yelp Defamation Lawyer About Your Circumstances

Are you dealing with an online defamation issue on Yelp or another consumer review website? If so, and you’d like to speak with an Internet libel lawyer about your predicament, get in touch with Aaron Kelly. The founding partner of Kelly / Warner Law, Aaron is an outstanding online defamation attorney who has helped hundreds of businesses and individuals with Internet reputation challenges.

If you have a question regarding the Yelp law — or any other online defamation legal issue — Contact Kelly / Warner. We’ll let you know — right away — if you have a viable case worth pursuing.