NOCI to eBay protected against tortious interference claim by Noerr-Pennington, but defamation survives

Verbena Products LLC
v. Pierre Fabre Dermo-Cosmetique USA, Inc., 2020 WL 2988587, No.
19-23616-Civ-Scola (S.D. Fla. Feb. 28, 2020)
 

Verbena (aka Beautyvice)
sells cosmetic and beauty care products on eBay. Defendant Yellow Brand “is a
leading global provider of online anti-counterfeiting services,” while
defendant PFDC “sells high quality pharmaceutical and dermocosmetics products
around the world, including hair care products under the trademarks RENE
FURTERER and PIERRE FABRE.” PFDA sent a notice to eBay accusing Beautyvice of
selling counterfeit products, and, as a result, eBay removed Beautyvice’s
accused listings. These were, however, allegedly legitimate Rene Furterer
products that Beautyvice lawfully purchased and re-sold. Beautyvice submitted a
counter notice, but eBay told Beautyvice to resolve this matter directly with
the rights owner.
 

Beautyvice contacted
PFDC and received first a form email and then no other reply; eBay had not restored
the listings at the time of suit.
 

Lanham Act false advertising:
a “single, private communication with eBay” wasn’t commercial advertising or
promotion, even though the effect was to limit the dissemination of Beautyvice’s
own advertising. Unfair competition under Florida common law and FDUTPA claims
failed for the same reason.
 

Noerr-Pennington: this doctrine protects First Amendment
“petitioning of the government from claims brought under federal and state laws
including … common-law tortious interference with contractual relations.” But
it doesn’t preclude defamation liability. Noerr-Pennington extends to acts
reasonably attendant to litigation, such as demand letters, but not to sham
lawsuits. A sham lawsuit is, first, objectively baseless, and second, brought in
the subjective belief “that the process of the suit itself would further an illegal
objective. Baselessness is a difficult
showing, and Beautyvice didn’t show that the demand letter was “objectively
baseless.”  (It seems to me the court has
skipped a separate, important step: is a notice of claimed infringement (NOCI)
to eBay under eBay’s procedures equivalent to a “demand letter”? It doesn’t actually threaten
litigation against anyone, if I understand the NOCI process. That doesn’t mean
that the relatively novel NOCI should not be treated like a demand
letter for Noerr-Pennington purposes, but it does seem to me to require
a distinct analysis, especially since the related §512(f) isn’t subject to Noerr-Pennington
as far as I am aware.)
 

Anyway, tortious
interference claims were kicked out, but not defamation claims.

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