Suing Doe reviewers under the Lanham Act fails

Reybold Gp. v. Does 1-20, 2017 WL 4326360, No. 17-810 (D.
Del. Sept. 29, 2017) (magistrate judge)
Reybold sued the Does for infringement, dilution, injurious
falsehood, and defamation based on their statements on ApartmentRatings.com
about Reybold’s St. Andrews Apartment Complex, and made an ex parte motion for
discovery.  Reybold wanted to issue a
third-party subpoena to ApartmentRatings.com seeking, among other things, the
IP addresses from which the online postings originated. Reybold planned to then
subpoena the relevant ISPs associated with those IP addresses, in order to
identify names, payment information, and other identifying information
associated with those addresses.  The
court, rightly, denied the motion.
Here’s two examples of the comments at issue:

(b) anonymous
I would in no way recommend this complex. Apartments are
old, lawns are always trash covered, cigarette butts and dog crap everywhere.
Trash areas are always a mess. Maintenance stuff never gets done. When it does
they have to come back 3 or 4 times. My rent goes up every year and new people
get deals, yet I get nothing for staying. I’m out of here this year. There is
tons of new stuff around that is cheaper. Rock wood, Emblem, check these out.
So much nicer for less money. Also, my UPS and FedEx packages are always
getting stolen from my door and they don’t do anything about it. Good Riddance
$hlt Andrews.
Added Feb 01, 2017 …
(e) anonymous
I’ve been living at this place with bad wiring for months
now and no one seems to care. I have several outlets that spark when I use
them, some that don’t work at all, and one that only works when you tap on it.
The wiring in my home is obviously not right. I have been begging them to fix
it and they keep telling me they’re trying to get an electrician out to look at
it but no one ever shows. I have children and I should feel safe having them
live her[e] but I don’t. But let me pay rent one day late and they’re all over
me. I hate this place.

Expedited discovery requires the party seeking discovery to
demonstrate that its request is “reasonable” in light of the relevant
circumstances. Where such discovery is sought in order to identify unknown or
anonymous John Doe defendants, courts first ask whether the plaintiff has
established a prima facie case for each essential element of the claim(s) in
question. If so, courts have asked whether the plaintiff has demonstrated: (1)
that it has no other way to identify the alleged wrongdoers, aside from
obtaining the discovery at issue; or (2) that expedited discovery is necessary
because evidence identifying the defendants may be otherwise destroyed (e.g.,
as a result of routine deletion by third party ISPs). Good cause can exist in
these cases, although courts will still consider other protections for
defendants from misuse of their personal information.
The court looked at the Lanham Act claims first, since they
provided federal subject matter jurisdiction. There was no suggestion of false
association in the complaint; claims for “Unfair Competition” and “Commercial
Defamation” were both really false advertising claims.  Reybold failed to sufficiently allege
commercial advertising or promotion: that the reviews were commercial speech,
that they came from a defendant in commercial competition with Reybold [note
that this should have been replaced with the Lexmark standard, but it makes no difference], or that the speech
was made for the purpose of influencing consumers to buy a defendant’s goods or
services.  Seven of the 14 challenged
posts were listed as being written by a “Resident” or “Prospective
Resident[,]” and all 14 postings either directly state or very strongly imply
that the poster currently lives in, has previously lived in, or was thinking of
moving to St. Andrews.  No post was
explicitly identified with a competitor; one post mentions competitors, but
still claims to be from a renter making comparisons.  And no other facts were pleaded to explain
why the posts could plausibly be from competitors. 
Without the Lanham Act claims, the question arose whether
the court had subject matter jurisdiction over the remaining claims.  With anonymous Does, it was hard to show
diversity jurisdiction.  (Given the
content of the posts, the more plausible inference was that there was no
diversity jurisdiction.)  Some federal
courts apparently think otherwise, but the Third Circuit has a fairly clear
rule about whether the existence of unidentified or “Doe” defendants defeats
diversity jurisdiction: where there are no allegations as to their citizenship,
“John Doe parties destroy diversity jurisdiction if their citizenship cannot
truthfully be alleged.”

Given the lack of a prima facie federal claim and the apparent
lack of subject matter jurisdiction, the court denied Reybold’s motion for
expedited discovery.

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