Pop goes the kitty? registration and infringement are separate inquiries, court points out

SportPet Designs Inc. v. Cat1st Corp., No. 17-CV-0554 (E.D.
Wis. Mar. 2, 2018)
SportPet sued Cat1st for patent, trademark, and copyright
infringement and violations of Wisconsin’s Deceptive Trade Practices Act based
on its sale of pet products such as play structures for cats. SportPet alleged infringement of two registered trademarks: POP OPEN for collapsible containers
for household use [containers that … pop open?] and SPORT PET DESIGNS for pet
kennels, beds, and bedding and pet toys.
SportPet wasn’t assigned the POP OPEN mark until after it
brought this action, so it lacked standing to assert a claim for infringement. Even
if it could establish standing, the complaint didn’t plausibly suggest
infringement.  Not strengthening the
claim for the distinctiveness of the mark, the complaint alleged that “Cat1st
is violating SportPet’s . . . Pop Open trademark[]” by “using and advertising
the pop open design,” which “is a protectable mark.” But the word mark (if mark
it be) does not protect “the pop open design” (which presumably would have its own functionality issues if claimed as a mark).
The complaint also alleged that “Cat1st’s packaging and
advertising copies” language from SportPet, e.g., “pop open, sturdy and
lightweight, for travel, and convenient for carrying”—“almost word for word.”  That wasn’t enough here. Examples in the
complaint showed Cat1st’s use of similar terms to those used by SportPet—e.g., “sturdy,”
“lightweight,” “for travel,” and “for your carrying convenience”—none used the
specific phrase “pop open” (or a colorable imitation of it) in any way, much
less as a distinguishing and source-identifying mark.
SportPet’s second trademark claim did a lot better.  Here are the parties’ logos and packaging:

Plaintiff and defendant logos

Plaintiff and defendant packaging

Cat1st argued that the issue was whether its logo infringed SportPet’s
standard text mark.  But that’s not so:
trademark cases evaluate the marks “in light of what happens in the
marketplace.”  [citing me!]  The court also rejected as outside the
pleadings Cat1st’s argument that its uses were all “from packaging for products
sold in Japan under an exclusive license agreement” between the parties, “where
Cat1st lawfully owns the trademark registration for ‘Sport Pet Japan.’” Likely
confusion was sufficiently pled.
SportPet’s copyright infringement claim failed because it
had’t sought or received registration. 
[And might have a Kirtsaeng
issue, if Cat1st’s claims about Japan are true.]
The court also dismissed a claim under Wisconsin’s Deceptive
Trade Practices Act alleging that Cat1st misrepresented “to the public . . .
that [it is] selling SportPet’s products” and “misrepresent[ing] to [SportPet]
that [it] only sold the infringing products in Japan.” Cat1st’s
misrepresentations to the public allegedly caused SportPet to lose sales due to
customer confusion and Cat1st’s misrepresentations about where it was selling
its goods allegedly allowed it avoid legal action as it snuck into the U.S.
market. The court found that SportPet didn’t plausibly allege that the
misrepresentations caused SportPet any pecuniary losses recoverable under the DTPA, because
misrepresentations to consumers didn’t materially induce SportPet itself to
act, as required.  And Cat1st’s alleged
misrepresentations to Sport Pet didn’t contribute to SportPet’s decision to buy
anything or otherwise enter into any commercial transactions as a consumer of
goods or services, also required by the DTPA.

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Use of photo beyond license window doesn’t create false endorsement claim

Bovinett v. HomeAdvisor, Inc., No. 17 C 6229, 2018 WL
1234963 (N.D. Ill. Mar. 9, 2018)
Bovinett, a model and actor, participated in a photoshoot
for HomeAdvisor. Bovinett’s agent was allegedly assured that the photos would
be used in static form only (i.e., either in print media or as a static image
posted on a website), and would not be incorporated into any video. Two weeks
later, Bovinett’s agent signed a consent and release form stating that Bovinett
agreed to convey his rights in the photos to HomeAdvisor for use “in
advertising, promotions, and any other use, and in any media, desired by
HomeAdvisor in its sole discretion, including but not limited to display on the
HomeAdvisor website, in television commercials, and on the Internet.”
HomeAdvisor’s personnel allegedly assured Bovinett’s agent that notwithstanding
the consent and release language, HomeAdvisor would not put the photos to use
in any video format.  Then it did.
Fraudulent inducement: Claims involving a false statement of
intent regarding future conduct are generally not actionable under Illinois law,
unless they are “particularly egregious” or are part of a larger scheme. These
alleged misrepresentations weren’t particularly egregious, nor did Bovinett
allege a pattern; two different statements about non-video use could in theory
be a pattern, but Bovinett didn’t sufficiently allege the first statement with
specificity.  Nor was fraudulent
concealment properly alleged; this requires that the defendant concealed a
material fact when under a duty to disclose that fact, but some sort of
fiduciary or confidential or other special relationship is required and none
was alleged.
Lanham Act/Illinois Consumer Fraud and Deceptive Business
Practices Act/Illinois Uniform Deceptive Trade Practices Act:  Bovinett failed to allege any false
statement.  And the likely confusion
claims failed because there could be no confusion about Bovinett’s affiliation,
sponsorship, or approval of defendants and/or their activities and services. “Bovinett
admits he agreed to pose as a model for HomeAdvisor’s photoshoot with the
knowledge that HomeAdvisor intended to use those photos in advertising. … [T]he
allegedly tortious commercials might well leave viewers with the impression
that Bovinett endorses HomeAdvisor. But that impression is accurate, at least
as of the time Bovinett sold his rights in these photos, so the impression
cannot confuse anyone.”  The court doesn’t discuss the rump confusion theory that viewers would be
confused about whether he authorized video use—which could hardly be material
to anyone, even if for some extremely unlikely reason the matter occurred to them.

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Redbox’s claims miss release window for injunctive relief

Redbox Automated Retail, LLC v. Xpress Retail LLC, 2018 WL
1240345, No.17 C 5596 (N.D. Ill. Mar. 9, 2018)
The parties compete in the market for DVD rental services
through automated vending machines called kiosks. “In early 2016, Redbox
learned that DVDXpress was using kiosks that were, like Redbox’s, entirely red
in color. Around the same time, Redbox also learned that DVDXpress was
advertising—on its kiosks, its website, and elsewhere—that customers could rent
movies through DVDXpress twenty-eight days before the same DVDs became
available through Redbox.”
Nearly a year later, one Redbox official wrote in an email,
“I think that’s false advertising[.] We are day and date for most,” then asked
the CEO whether DVDXpress’s red kiosks infringed Redbox’s “trademarks or other
IP.” The CEO replied: “No it does not. We have looked at [sic] many times.
Nothing we can do except get these locations.” Four months later (15 months
after learning of the comparative advertising) Redbox sent a C&D.  More than three months after that, Redbox
Given this recitation of the facts, you won’t be surprised
to learn that a preliminary injunction was denied due to Redbox’s delay.  The court didn’t even consider whether eBay changed the Lanham Act presumption
of irreparable injury (it does) because the delay would rebut any presumption.
Redbox argued that, at first, only lower-level employees
knew of DVDXpress’s alleged infringement. “But that assertion is not backed by
evidence in the record, and in any event Redbox does not explain why it would
be relevant to determining when it, as a company, learned of the infringement.”  The email from the CEO stating that the
company had already looked “many times” into the matter of DVDXpress’s red
kiosks and concluded that there was no infringement was only icing; it showed
that Redbox was “well aware of [its] rights and had concluded that they were
not violated.”
Redbox argued that it didn’t delay in bringing the false
advertising claim because it sought relief based only on DVDXpress’s
advertising regarding DVDs released between December 2016 and July 2017. But
the content of DVDXpress’s advertising—“Rent it here first 28 days before …
Redbox”—hadn’t changed since early 2016. 
Redbox argued that DVDXpress’s comparative advertising was only
“partially false” in early 2016, and that Redbox brought suit when the
advertising became false as to more DVDs through new agreements with Warner
Bros., Fox, and Universal Pictures decreasing the delay between a DVD’s release
and its availability at Redbox kiosks.  If there had been a 28-delay for all such
films in early 2016, then waiting to sue would have been a good idea.  But of the 24 recent movies Redbox claimed to
have available within 28 days, only 8 were distributed by these studios.  There was no evidence that DVDXpress’s
advertising as to those studios’ DVDs was any less false in early 2016. And
even as to those studios, Redbox was releasing some DVDs from them earlier—five
out of the 8 it named were distributed before the new agreement. Thus, the
comparative advertising couldn’t have converted to “substantially false” as a
result of those agreements.  Indeed, the
emails showed that people at Redbox believed the advertising was false in early
Nor would the court stop the clock when Redbox sent its
C&D. “If the letter had led to negotiations with DVDXpress, then Redbox
perhaps could not be faulted for waiting to see if the dispute could be
resolved out of court. But DVDXpress never answered the letter, and Redbox
proceeded to wait a further three months before filing suit.” That delay “severely
undermines any sense of urgency that might otherwise have attached to Redbox’s
request for preliminary injunctive relief.”

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Pod save the claim: “sportspods” competition leads to false advertising, TM claims

Anthem Sports, LLC v. Under the Weather, LLC, 2018 WL
1175406, No. 17cv596 (D. Conn. Mar. 6, 2018)
Anthem and UTW compete in the market for “sportspods,” small
tents for viewing outdoor sporting events during inclement weather. I won’t
discuss the claims for declaratory relief against potential violations of UTW
Anthem initially distributed UTW products online under an
exclusive distribution agreement, until the relationship collapsed and UTW
turned to Dick’s Sporting Goods for distribution. “Anthem subsequently located
a different manufacturer and “began offering all weather personal enclosure
products under the trade names UnderCover™ and SportPod™, including SoloPod™,
Action Pod™, TeamPod™, and BugPod™.” UTW then allegedly began using “the mark
‘Sportspod’ to refer to multiple goods” that it offered for sale.  UTW also allegedly threatened Anthem, its
supplier, and customers with patent infringement claims.
On Facebook, when customers leave comments indicating a
desire to purchase Anthem Pods on Anthem’s Facebook page, UTW’s representatives
allegedly respond (i) that the “only place to get [Anthem Pods] is
undertheweatherpod.com,”; (ii) that the Anthem Pods “are illegal knockoffs and
very poor quality,” and that the “legal ones are only available at
undertheweatherpods.com”; and (iii) that the Anthem Pods were “[Pescovitz’s]
idea and patent”; (iv) and that the Anthem Pods are “complete knock offs.” (Couldn’t
UTW’s reps just be blocked?)
Based on this conduct, Anthem brought a false designation of
origin claim, a false advertising claim, and a trademark infringement claim.
Guess which survived!
For false designation of origin, the court found that Anthem
hadn’t properly alleged a reverse passing off claim.  Misrepresentations of inventorship aren’t
actionable under Dastar.  The alleged claims that Anthem pods could
only be bought from UTW were really statements that the Anthem pods were are “knockoffs”
or of “inferior quality,” and that the only place to get legal “pods” was from
UTW’s website. These comments couldn’t plausibly be interpreted to suggest that
UTW sold Anthem Pods but rather presents UTW as an alternative.
False advertising: The “knockoff” and “poor quality”
statements were mere statements of opinion, not fact.  The “illegal” and “patent infringing”
statements were also nonactionable layperson statements of legal opinion.  “Complete knockoffs” was both opinion and
puffery via subjective hyperbole.
Trademark: claims based on UTW’s use of SportsPod and
Anthem’s claimed SportPod mark survived. 
[Since the judge in this case identified the products at issue as
“sportpods,” I foresee a problem with this term as a mark for the products.]
Anthem also sufficiently alleged tortious interference (and
common law unfair competition) from UTW’s allegedly disparaging statements on
FB, including an allegation that UTW made these comments with full knowledge of
the lack of “any legitimate basis” for them and in “bad faith to unlawfully
stifle competition.”  Instead of
identifying specific lost customers, what was required was facts demonstrating
“that, except for the tortious interference of the defendant, there was a
reasonable probability that the plaintiff would have entered into a contract or
made a profit.” The complaint alleged that various potential customers have
expressed interest in purchasing Anthem Pods on Anthem’s Facebook page, and the
majority of the disparaging comments were aimed at customers who had expressed
enthusiasm for Anthem’s products. 
Targeting “enthusiastic potential customers” made it plausible that some
of them didn’t buy Anthem pods due to UTW’s statements.
Connecticut’s unfair trade practices law, CUTPA, also
allowed a state coordinate trademark infringement claim, but not a false
advertising claim for the reason discussed above.  Anthem also alleged that UTW violated CUTPA
by “inducing Anthem to invest significant resources and efforts in marketing
and selling the UTW Personal Enclosures by promising Anthem that it would be
the exclusive distributor for such products other than UTW and then selling the
UTW Personal Enclosures to Dick’s Sporting Goods for resale.”  UTW argued that, even if accepted as fact,
these allegations established little more than breach of contract.  However, “although “a simple breach of
contract would not be within the criteria for a CUTPA claim, substantial
aggravating circumstances attending the breach would sustain such a claim,” and
Anthem alleged sufficient aggravating circumstances by adding to the alleged
breach trademark infringement and baseless infringement threats against Anthem
when the company attempted to sell its own products in lieu of those from UTW.

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unauthorized sale of model’s photos leads to internally inconsistent TM/ROP ruling

Passelaigue v. Getty Images (US), Inc., 2018 WL 1156011, No. 16-CV-1362 (S.D.N.Y. Mar. 1, 2018)

Elodie Passelaigue is a professional fashion model who sued under the Lanham Act, Washington state law, and New York law against Getty, Bill Diodato Photography, and Bill Diodato (no stranger to IP litigation) for unlawfully licensing and selling images of her that were eventually used to advertise synthetic beauty products. The court dismissed some claims but allowed others to continue.

As part of one advertising campaign in early 2004, Clinique arranged for a test photo shoot in New York, and hired Diodato to take the photos. After the test shoot, Diodato allegedly “asked Ms. Passelaigue if he could use photos from the test shoot for his portfolio and professional website simply as an example of his work.” He allegedly “showed her a form document titled ‘Model Release,’ representing to Ms. Passelaigue that if she was willing to allow him to use the photos only for his portfolio and website, she just needed to sign the Model Release form.” Passelaigue allegedly agreed to allow him to use the photos for his website “[a]s a professional courtesy.” The Release she signed allegedly didn’t have some important information, including photographer or witness signatures, a “Description of Shoot,” or an attached copy of a photo ID or “Visual Reference.”

In 2009, Passelaigue was hired to model for a photo shoot in New York for Spiegel, and Diodato photographed that shoot. Diodato allegedly took about a dozen headshots of Passelaigue without Spiegel’s consent, and told Passelaigue the headshots were “precautionary, in case Spiegel later decided it wanted to use the images for the cover of a catalog.” Passelaigue didn’t sign anything at the 2009 Spiegel photo shoot.

In 2014, Passelaigue learned for the first time that her headshots were being used for an advertising campaign for Botox and on an Allergan website, http://www.skinmedica.com.  The webpages allegedly falsely suggest that Passelaigue was at least in her 40s.  Allergan allegedly continued to use Passelaigue’s images in its advertising campaigns until 2016.  Passelaigue’s agent investigated, and eventually Getty provided a copy of the Release containing a handwritten date of “6-11-09” under her name, and the phrase “Clinique Underwater Shot [sic] & Spiegel Beauty” on the line designated for “Description of Shoot,” both written by someone else. This Release also included two sample headshots, one from each shoot.  Getty eventually identified the photographer as “Adrianna Williams,” who was selling other models’ photographs through Getty, but other models hadn’t heard of her either, and Passelaigue determined that the photographer was in fact Diodato.

The court found the release binding as to the 2004 Clinique shoot only, since Passelaigue conceded that she signed it; the plausible allegations of “doctoring” the release sufficed to continue the case for the 2009 photos.  Passelaigue argued that she was fraudulently induced to sign the original Release because
Diodato orally promised her that he would only use her photographs in his portfolio and on his website.  However, the release language was two paragraphs of super-broad language allowing the photographer to distribute the images “for editorial, trade, advertising, packaging or other purposes in any manner or medium … throughout the world, in perpetuity.”  It further said, “I understand Photographer may contract with a stock agency and that the images may be included in stock files. I further understand and agree that the images may be modified, altered, cropped and combined with other content such as images, video, audio, text and graphics.”  Because the alleged misrepresentations conflicted with the terms of the Release, “there can be no reasonable reliance as a matter of law.”

Nor was the Release voidable because, “for a high-end fashion model, the limitation of $500 in damages, as well as the prohibition on any objection to unflattering, embarrassing, or otherwise objectionable uses, are unconscionable terms.” Although the allegations in the complaint suggested “some deceptive tactics,” they didn’t rise to the level of depriving Passelaigue of “meaningful choice,” as required for unconscionability.  “The Release is short—one page—and afforded Plaintiff with the opportunity to easily disprove Diodato’s alleged oral promises that he would only use the photographs for his portfolio.” Passelaigue didn’t allege that her bargaining power, experience, and/or education were limited, or that she was under any sort of duress or pressure to sign the release without reading it, and she admitted that she signed it as a “professional courtesy.” Thus, there were no allegations that Diodato did anything so as to effectively deprive Passelaigue of a meaningful choice.

The same arguments disposed of her fraud claim.

Continuing on with the 2009 photos, the court turned to her NY right of publicity claim.  Defendants argued that the photographs weren’t used “for purposes of advertising or trade” under Section 51 because they were merely making the images themselves available for license.  But an image for sale by an online image distributor is exempt from Section 51 liability only so long as it was “for use in a manner lawful under this article.” Because Passelaigue plausibly alleged that the sale of images was not in fact “for use in a manner lawful under” Section 51 by virtue of the fact she did not knowingly authorize their use, and she also adequately alleged that sale of the images themselves was “for purposes of advertising or trade.” 

The court also disposed of defendants’ First Amendment defense.  “The photographs here are entirely commercial in nature. They were commissioned by companies seeking to use them in advertising campaigns, and any artistic expression added by Diodato as the photographer was incidental.” Nor was Section 51 preempted by §301 of the Copyright Act, because of the additional element of use of the image for advertising or trade purposes without written consent.

Passelaigue’s Lanham Act claims mostly failed.  Her allegations were that defendants violated the Lanham Act by (1) misrepresenting that Getty had the right to license or sell photographs of her; (2) using the fictitious name of Adrianna Williams as the name of the photographer, which was likely to cause confusion as to the origin of the images; and (3) contributing to Allergan’s use of her image in a way that falsely associates her with synthetic cosmetic products.

However, Passelaigue had no rights to the photos themselves.  “[H]er only plausible claim can be based on harm to her image, and its false association with another product.” Thus, alleged misrepresentations (1) and (2), as well as allegations that Diodato contributed to Getty’s acts, failed to state a claim; even if she did have rights to the photos, Dastar would bar those claims.

Turning to claims based on false affiliation with Allergan and with the pseudonym Adrianna Williams, the court noted that “the misappropriation of a completely anonymous face could not form the basis for a false endorsement claim, because consumers would not infer that an unknown model was ‘endorsing’ a product, as opposed to lending her image to a company for a fee.” However, Passelaigue’s allegations she is an “internationally-renowned fashion model” might establish that her mark is strong enough to cause a likelihood of consumer confusion.  In addition, the sale of images of Passelaigue on Getty’s stock photo website and its listing under the work of photographer “Adrianna Williams” were affiliations that are covered by the text of the Lanham Act. [How could this possibly be material to anyone?  Also, if Diodato really did take the pictures, why can’t he use a pseudonym without violating the Lanham Act? Are other pseudonyms also violations of the Lanham Act?  Also also, why isn’t this conduct, which is to say a false designation claim repled as “affiliation” with Getty or Williams, covered by Dastar too?]

As for contributory infringement, Passelaigue failed to sufficiently allege that defendants intentionally induced non-party Allergan to violate the Lanham Act, as required. She alleged that Diodato was aware that, by selling the images to Getty, that Getty would “use the images commercially, advertising them for sale or license to others, such as Allergan,” and that Getty “knew or should have known that professional models such as plaintiff … would not have agreed to convey rights to their images to Diodato, Getty, or ultimately one of Getty’s clients.” She further alleged that Getty should have known how Allergan would use the image because it licensed that image. None of this was sufficient to allege intentional inducement. (Citing Tiffany v. eBay.)

Anyway, the NY unfair competition claims were analyzed just as the Lanham Act claims, except that NY also requires bad faith.  But Passelaigue’s allegations of defendants’ responsibility for the unauthorized use by Allergan would show bad faith.  [Wait one second: weren’t those the allegations just found insufficient to allege contributory infringement?  If NY law is the same as federal law, how can this be the case?]

As for NY consumer protection law under Section 349, allegations that Getty misrepresented its right to license were too conclusory to state a claim, or explain how the alleged misrepresentation actually targeted or harmed consumers.

The court refused to dismiss class allegations at this stage of the case.

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Falsity claim isn’t the ticket for cancelled concert

Universal Attractions, Inc. v. Live Nation Entertainment,
Inc., 2018 WL 1089747, No. 17 Civ. 3782 (S.D.N.Y. Feb. 12, 2018)
Universal, an entertainment company, produced the I Love the
90’s tour, a series of concerts by various artists from the 1990s. Universal
engaged promoters throughout the US to work with Ticketmaster to market and
sell tickets to the show. Prices for the tickets ranged from “the low $20s to
hundreds of dollars depending on seating and perks offered[.]” For the Vina
Robles Amphitheatre in Paso Robles, tickets were priced to be sold for $65,
$75, and $150, along with a group of VIP tickets set to be sold for the PR
Venue, which ranged from $250 to $375 per ticket.
Ticketmaster sold tickets in two phases: pre-sales (before
availability to the general public) and general sales.   For pre-sales, “a select group of consumers
were given codes through e-mail, social media, or other means that could then
be used to unlock the relevant pre-sales offer.”  For at least two venues, Ticketmaster only
listed VIP tickets in the pre-sale period; those with the codes could access
and buy the cheaper tickets, but members of the general public only saw the VIP
tickets.  As a result, Universal alleged,
fans were “turned off” and the number that left Ticketmaster’s site without
purchase was uniquely high, and the conversion to sales was uniquely low.  The Pasa Robles operator ultimately cancelled
the show due to the lower than expected volume of ticket sales.
The court rejected Universal’s argument that Ticketmaster
deceived members of the general by presenting them with only the VIP tickets
during presales, causing them to leave without purchasing any tickets and not
return because they believed that the VIP ticket prices were the only ones
available.  Failing to disclose
information isn’t literally false, and it isn’t misleading unless it renders any
affirmative statements false or misleading. But “the lack (or presence) of
tickets at prices lower than the VIP tickets on Ticketmaster’s website during
presales has no bearing whatsoever on the veracity of the VIP ticket prices
This reasoning seems to me to avoid the challenge of
Universal’s argument, which is that the list of available tickets for a
particular show implicitly (mis)represents that these are not just the
available tickets, but the full range of tickets that will be available, especially for members of the general public who
believe, correctly, that they can’t buy tickets at present.  That is, the listed prices implicitly represent
that these are the only sets of tickets which members of the public may be able
to buy once general sales begin.  Thus,
the listed prices became misleading
because of the context.   That is certainly plausible—most events, after
all, want you to come, and it seems logical that they’d advertise the cheap
available tickets if there were any to be had. 
Sufficient disclosure could have come in other ways than in listing all
the different prices that tickets would be available at in the future, though
that’s one way to do it.  But the key
point, reinforced by the alleged behavior of consumers in not bothering to
return to the site after sales began, is that ticket-buying consumers presume
that information about what tickets will be available when the sales begin is
complete information.

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Article in Judges’ Journal is opinion, not actionable under defamation or false advertising law

Board of Forensic Document Document Examiners, Inc. v. American
Bar Ass’n, No. 17 C 01130, 2018 WL 1014510 (N.D. Ill. Feb. 22, 2018)
The Board of Forensic Document Examiners, and seven of its
members, alleged defamation by an article appearing in The Judges’ Journal,
published by the ABA. Members of the Judicial Division of the ABA receive a
complimentary subscription to the Journal. In August 2015, a special issue titled
Forensic Sciences – Judges as Gatekeepers focused on various subjects of
forensic science that judges might encounter when qualifying experts. One
article, Forensic Handwriting Comparison Examination in the Courtroom, was
written by defendant Thomas Vastrick, who is a forensic document examiner
certified by a different board, namely, defendant American Board of Forensic
Document Examiners. Vastrick also sits on the board of the American Board and
is one of its past presidents. The court commented that he really should have
disclosed that affiliation, but still there was no viable cause of action.
The plaintiffs challenged four statements as
defamatory/false light invasion of privacy/false advertising under state and
federal law:
An appropriately trained forensic
document examiner will have completed a full-time, in-residence training
program lasting a minimum of 24 months per the professional published standard
for training. Judges need to be vigilant of this issue. There are large numbers
of practitioners who do not meet the training standard.
The American Board of Forensic
Document Examiners … is the only certification board recognized by the broader
forensic science community, law enforcement, and courts for maintaining
principles and training requirements concurrent with the published training
standards. Be wary of other certifying bodies.
In a section captioned, “What to
look out for,” the statements, “Certified by board other than the American
Board of Forensic Document Examiners” and “Member of American Academy of
Forensic Sciences but not the Questioned Document Section.”
Plaintiffs challenged these statements as false based on the
required training standards for certification, their specific backgrounds, and
the courts’ previous acceptance of practitioners certified by the Board. The
author and editor allegedly knew that the statements in the article were false,
because both knew that the Board and the American Board were each certified by
the same accrediting entity, and that the Board abided by published training
standards for certification.
Defamation: An actionable statement must sufficiently
identify the person who is being criticized to a “reasonable individual”
reading the statement. If “extrinsic facts and circumstances” are needed to
show that a statement refers to a particular plaintiff, it’s not defamation per
se. The challenged statements didn’t identify any particular person by name,
let alone any of the plaintiffs. Plaintiffs argued that this was group defamation:
a statement can identify the persons in the group if the group is “sufficiently
small and the words may reasonably be understood to have personal reference and
application to any member of the group.” Plaintiffs’ group was around 12
diplomates certified by the Board.  But
that wasn’t enough, because the first challenged statement could reasonably be
interpreted to refer to any forensic document practitioner who has not
completed the specified training program—not just the twelve examiners
certified by the Board. It even says, “There are large numbers of practitioners
who do not meet the training standard.”
So too with the second and third statements, which promoted
the American Board without explicitly naming the Board.  Plaintiff Sulner claimed that he was the
specific target of the fourth statement, “look out for” someone who is a “Member
of American Academy of Forensic Sciences but not the Questioned Documents
Section.” Sulner alleged that he was the only certified forensic document
examiner “known to be” a member of the American Academy of Forensic Sciences
but not a member of the Questioned Documents Section (because members can only
be in one section and as an attorney he was in the Jurisprudence section). But anyone who is a member of the American
Academy of Forensic Sciences but not the Questioned Documents Section fit into
the statement.  Also, Sulner didn’t
allege that a reasonable reader somehow has access to all the relevant
information and thus would interpret the statement to target him. “Even if some
extraordinarily enterprising reader of The Judges’ Journal pieced all of that
together, where a ‘speaker is meticulous enough to preserve the anonymity of an
individual … the speaker should not be exposed to liability for defamation
because someone ferrets out the identity of the individual.’”
Separately, the statements constituted non-actionable
opinion.  The court first framed the
overall context: it’s a “scholarly” journal, setting the stage for the article
to be received as opinion, “because reasonable readers (especially judges) know
that scholarly journals often present one side or the other in opinionated
debates.” And the relevant article explicitly presented itself as offering
suggestions for judges to consider in evaluating the expertise of document
examiners. The intro for “What to look for” and “What to look out for” “employs
the language of opinion, not hard facts”: “While judges are responsible for
being court gatekeepers, I, as a practicing forensic document examiner, would
like to respectfully suggest ways to differentiate between the true
professional and the lesser-qualified practitioners.” The entire section of the
article was called, “Gatekeeping Tips from a Practitioner,” indicating that
this is the author’s viewpoint.  
The individual statements also used the language of opinion,
such as “appropriately trained
forensic document examiner” (emphasis added), and “recognized by the broader
forensic science community, law enforcement, and courts ….”  There was no way to verify the American
Board’s “recognition” in the community, and the sweeping breadth of the
statement made it even less fact-like/verifiable.  The third and fourth statements were part of
the section “What to look out for,” which already spoke in the language of an
opinion. And the intro sentence says that the author “suggests” that judges
look for certain things to distinguish between a “true” professional and “lesser”-qualified
practitioners. “Suggests,” “true,” and “lesser” “all signify that Vastrick is expressing
his opinions in offering the lists.”
Without a factual statement, the false light and state-law
false advertising claims also failed, as did the Lanham Act claim–without even needing to address the question of whether the article constituted “commercial advertising or promotion.”

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