Court considers fake reviews not deceptive if they’re just puffery

Jive Commerce, LLC  v.
Wine Racks America, Inc., 2018 WL 3873675, No. 1:18-CV-49 TS-BCW (D. Utah Aug.
15, 2018)
The parties compete in the wine rack and wine cellar
industry. Jive’s principal Jason Miller was formerly employed by WRA. Miller
fell out with WRA’s owner, Jeffery Ogzewalla, and founded Vino Grotto.  Jive alleged various acts by WRA to harm its
business, such as using Jive’s Vino Grotto and Home Collector Series marks in search
engine ads to redirect consumers to WRA’s websites. WRA’s website allegedly
copies content, images, trade dress, and look and feel from Jive’s website. WRA
also allegedly contacted Jive’s vendors to persuade them not to work with Jive
and made defamatory comments about Jive/Miller. WRA also allegedly posted false
and deceptive positive reviews on the internet, and also forged photographs and
address information on their website “to create the illusion of legitimacy and
to hide the geographic origin of their goods.”
The court denied a preliminary injunction.
As for the false reviews, the court rejected the Lanham Act
claims because nothing in the content of the reviews left by WRA’s employees had
been shown to be false and much was puffery. 
E.g., an employee stating that he “found the 24 bottle table top wine
rack fit neatly in that space, arrived quickly, and was very sturdy” could well
have concluded these things.  [Arrived
quickly, though?  More significantly, the
court doesn’t give weight to the at least implicit misrepresentation—I would
say necessary implication—that the review is from a true counterparty, rather
than from a representative of the seller. The court treats only the statements
in the reviews and not the reviews themselves as possible statements of fact,
but “I am an independent customer” is also a factual statement and the FTC
would surely say it had been conveyed by the reviews.]
Likewise, the court wasn’t impressed that WRA listed its
mailing address as being in Bend, Oregon, even though it had Utah as the
returns address. The court accepted that WRA had a presence in both states, and
any confusion caused by altering an image of a building owned by WRA in Utah
(as happened on the website) hadn’t caused any demonstrated injury.
The parties disputed who was the copier and who the copied
as between the two websites, but the court lacked sufficient information to
determine priority.  Furthermore, the
court didn’t think the websites were all that similar, except for similarities
coming from the genre.
Trademark claims related to use of Jive’s marks in bidding
for keyword ads didn’t show likely confusion, per 1-800-Contacts. The ad in the moving papers was clearly marked as
an ad, and Jive’s website was directly below it.
Jive also made claims based on WRA’s sale of products under
the Home Collector Series mark during a time in which, WRA contended, Jive was
not using the mark. Some factors favored a finding of likely confusion, but
there was no evidence of actual confusion, consumers’ degree of care, and
strength of the mark (if any); WRA also ceased use of the mark, making
injunctive relief unnecessary.
Tortious interference/defamation: not enough evidence of
injury inflicted by improper means; many of the people to whom RWA spoke
apparently kept doing business with Jive or ceased doing business with it for
other reasons.  (Declarations from the
identified customers here helped RWA a lot.)
Belt and suspenders: allegations that “Defendants’ conduct
has eroded and threatens to further erode Plaintiff’s customer and vendor
goodwill”; their “actions threaten to further diminish the competitive value of
Plaintiff’s products in ways that could be difficult to measure”; and “there is
a substantial risk to Plaintiff of lost future profits, damage to its
reputation, and loss of goodwill and loss of competitive market position” were
all too conclusory to constitute irreparable harm.


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