RipoffReport review isn’t “advertising or promotion,” without more evidence of reception

Wilson v. AdvisorLaw LLC, No. 17-cv-1525-MSK, 2018 WL
4932088 (D. Colo. Oct. 11, 2018)
Wilson and defendant Kennedy allegedly did business through
corporate entities, Wilson Law Ltd. and AdvisorLaw LLC, respectively. The
relationship ended badly, with Kennedy accusing Wilson, via email, of “competing
with my business” and asserting that Wilson was using AdvisorLaw without
authorization and to its detriment. The day of that last claim, a “Patrick
Erickson” posted a negative review of Wilson Law on the website
ripoffreport.com claiming that Wilson “lied to me with no reservations,” that
Erickson had needed an experienced lawyer for FINRA and IRS issues from a
divorce, and that Erickson paid over $15,000 before learning that Wilson lied
about his expertise/progress; when confronted, Erickson said, Wilson told him “good
luck getting any money back” and “I am very good at hiding from judgments and
collections.”  Forensic evidence
indicated that the review came from Kennedy’s home, though the parties dispute
whether Kennedy or another person posted the review.
The court granted summary judgment to defendants on the
Lanham Act claim and declined supplemental jurisdiction over the coordinate state
law claims.  I was a little surprised
that the court accepted the argument that a widely available post on the
internet wasn’t “commercial advertising or promotion” because there wasn’t
enough evidence that it was “sufficiently disseminated to the relevant
purchasing public such that the industry would consider it advertising,” though
perhaps the court would have reacted differently to a single, standard paid-for
ad.  Still, to be actionable, the
dissemination “must reach some significant number of actual or potential
customers of the parties’ products.” Evidence of that dissemination didn’t come
from the number of AdvisorLaw’s clients compared to those of Wilson, because
the mere fact of defendants’ success didn’t show that the review was a causal
factor.
Nor were general facts about RipOffReport.com helpful:
[T]he mere fact that
ripoffreport.com is a heavily-trafficked site does not mean that the Review
itself was broadly seen by the Plaintiffs’ potential customers. Just as opening
a storefront on a busy street does not guarantee a steady flow of actual
customer traffic, the fact that ripoffreport.com may attract millions of
visitors does not guarantee that any of those millions of viewers went looking
for reviews of the Plaintiffs’ services in particular, much less that such
visitors saw the Review in question. And even if they did, the Plaintiffs offer
no evidence to show that the visitors reading the review were otherwise
potential customers of the Plaintiffs’ services, rather than, for example, disinterested
internet scamps vicariously enjoying particularly scathing poison-pill notes.
Nor was Wilson’s own opinion that he had difficulty getting
clients after the review was posted, absent facts indicating that this happened
and that the review was the cause.  Nor
was it helpful that internet searches using 12 different search terms (e.g.
“wilson law, ltd.”; “mark h. wilson attorney”; “mark wilson finra”) routinely
yielded a link to the review on the first page. That didn’t prove that the
review was seen; even Wilson’s expert
report didn’t provide evidence of how potential customers of the parties’
services typically investigated those services. 
“It may be that the Plaintiffs’ potential client base consists of
unsophisticated and credulous individuals who might be influenced by an
anonymous internet review, or it might be that the client base consists of
sophisticated businesspeople and investors who would likely ignore such
scurrilous material, were they to even encounter it in the first place.” The expert
could not estimate how many people likely read the review.

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