fake online review by competitor wasn’t advertising/promotion, 10th Circuit says

Wilson v. AdvisorLaw LLC, — Fed.Appx. —-, 2019 WL
3819604, No. 18-1441 (10th Cir. Aug. 15, 2019)
Wilson, a lawyer, had a relationship with AdvisorLaw that
ended badly in November 2016. Later that day, a “Patrick Erickson,” allegedly
from New York, posted a negative review of Wilson on the website
ripoffreport.com accusing Wilson of serious and deliberate professional
malfeasance. When Wilson discovered the review, he sued the defendants. The district
court dismissed the Lanham Act claim and then dismissed the state law claims for
civil conspiracy, defamation, and deceptive trade practices under the Colorado
Consumer Protection Act without prejudice.
The court of appeals affirmed the finding that Wilson failed
to show “commercial advertising or promotion” because of a failure to meet
prong four [reminder, post-Lexmark, now prong three!]: the
advertising/promotion “must be disseminated sufficiently to the relevant purchasing
public to constitute ‘advertising’ or ‘promotion’ within that industry.” Though
Ripoff Report receives up to 250,000 visitors a day, that wasn’t enough to show
that a sufficient number of relevant clients received the message.
The court of appeals held that there wasn’t evidence that
the review here “was disseminated to the relevant purchasing public—prospective
clients in need of the type of specialized legal services that plaintiffs
provide or others in that industry who might have influence over prospective
clients.” It wasn’t enough to argue that it was disseminated to the public at
large or to cite general evidence that customers look for online reviews. “While
we don’t condone the posting of a false review on the Ripoff Report website, we
agree with the Second Circuit that ‘[a]lthough the Lanham Act encompasses more
than the traditional advertising campaign, the language of the Act cannot be
stretched so broadly as to encompass all commercial speech.’”
Comment: While I understand why the court ruled this way,
there’s a significant conceptual move that goes unannounced here, and I’m
inclined to think it’s a mistaken one. 
The early commercial advertising/promotion cases were about isolated
statements by individual salespeople to specific individuals that by their nature were unlikely to travel beyond the few
individual recipients.  By contrast, a
national mailing would be easily understood as commercial advertising even
though there was no evidence that a single person read the mailing on its way
from the door to the trash.  Likewise, no
evidence of how many people saw a TV commercial is ever required to find that
it’s advertising/promotion, even though they may all have ignored it.  That is, the structural features of
the communication—the intent and attempt to penetrate the market in an
organized and widespread fashion—usually suffice to put it within (or outside
of) the Lanham Act, and the way the standard test is worded is consistent with that understanding.  By requiring
evidence of reception for online postings—and only online postings, even on
review sites designed to reach consumers interested in a target’s commercial
offerings—the court is raising the standard for what constitutes commercial
advertising or promotion, but only with respect to online communications.  There are other cases finding fake reviews by
competitors, and websites set up purporting to be independent and designed to
be found in a search for the plaintiff’s name, to be actionable under the
Lanham Act; I think that’s probably the better result.

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