commercial speech requirement defeats Lanham Act claim against competing news channel

Tang v. Guo, No. 17 Civ. 9031 (JFK), 2019 WL 1207859
(S.D.N.Y. Mar. 14, 2019)
Plaintiff Tang is a political activist, author, and “one of
the leading Chinese political dissidents.” He currently runs two pro-democracy
nonprofit organizations and co-founded the online, independent media outlet
“Conscience Media,” which are supported with donations. Tang also “conducts and
host[s] conferences and fundraising events.”
In early to mid-2017, defendant Kwok, “a Chinese
multi-billionaire and real estate mogul,” began to market a YouTube series,
“Everything Is Just Beginning.” Tang alleged that the real purpose of
“Everything Is Just Beginning” “was to compete with Mr. Tang personally and
socially, as well as professionally, in the online media business.” Kwok
allegedly “began to contact Tang’s potential donors” to dissuade them “from
doing business with or contributing to … Tang or his online media outlet,
Conscience Media.” Kwok also began posting “taunting material and defamatory statements”
about Tang and his wife Jing on YouTube and Twitter, accusing them of being
spies and accusing Tang of defrauding donors and of being a “swindler” and
convicted rapist. As a result, many individuals allegedly cancelled their
upcoming trips to Tang’s Democratic Revolutionary Conference and Tang lost
donors to his organizations and website.
Tang sued for violation of the Lanham Act and brought
various state law claims for slander, tortious interference, and the like. The
court dismissed the Lanham Act claim for want of commercial speech, and
declined to retain jurisdiction over the pendent state claims.
Tang argued that Kwok’s web postings were commercial speech
because he made them to divert viewers and donors from Tang’s media platform to
“Everything Is Just Beginning.” In addition, Kwok allegedly presented links to
his real estate properties alongside his videos. The court found that Tang
failed to adequately allege economic motivation from his communications on
YouTube, Twitter, and to individual donors. Though Kwok allegedly sought to
gain viewers, they didn’t allege that he intended to profit from that increase
by, for example, ad revenue or donations. As to links to Kwok’s Chinese
properties, there were no allegations that Kwok’s communications were made with
the intent of gaining potential customers to his real estate ventures. As the
court noted, the subject matter of the videos didn’t relate to Kwok’s hotel
business.

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