November 21, 2006
Griping Blog Post Leads to Lawsuit--BidZirk v. Smith
By Eric Goldman
BidZirk, LLC v. Smith, 2006 WL 3242333 (D.S.C. Nov. 7, 2006)
Despite all of the hype about blog law, the reality is that we've had comparatively few blog-specific lawsuits. As a result, we give extra attention to the early disputes (like this one) as possible predictors of what's to come.
This case involves a classic griping blog post. The author, Smith, runs a blog called Fix Your Thinking, which purports to cover "editorial news & news commentary covering eBay & Apple drama." On Dec. 31, 2005, he ran a lengthy post entitled "Special Report: You Gotta Be Berserk To Use An eBay Listing Company! The Whole Story " In this post, he relates his unfavorable experiences with BidZirk, one of the many companies that help people resell goods on eBay. As part of this post, he used BidZirk's logos several times.
In response to this gripe post, BidZirk sued Smith for Lanham Act violations, defamation and invasion of privacy. Smith fought back with unspecified counterclaims. At a March 16 hearing, Smith promised to remove all but one of BidZirk's logos. On April 10, the judge denied BidZirk's motion for a preliminary injunction because Smith's use of the trademarks was for news reporting and commentary (which isn't actionable under trademark law). BidZirk has appealed the denial of the preliminary injunction to the Fourth Circuit Court of Appeals.
In the Nov. 7 ruling, the judge evaluates BidZirk's motion to dismiss Smith's counterclaims for lack of federal subject matter jurisdiction. Smith's counterclaims relate to his experiences with BidZirk and their dealings in litigation, neither of which the court felt were close enough to BidZirk's claims over the blog post to mandate consolidation, and there was insufficient basis to support federal jurisdiction otherwise. Presumably, Smith can reflie his claims against BidZirk in an appropriate state court.
Putting aside the procedural technicalities, I'm still stuck on why the plaintiff brought this lawsuit in the first place. Smith posted a very idiosyncratic story to a relatively low-profile blog about a small eBay reseller with 3 storefronts in South Carolina. As a result, I assume that very few people would notice the post, let alone be influenced by it. The lawsuit just escalate the attention paid to the post. Meanwhile, I haven't been able to work through all of the facts, but on its face the trademark claim appears pretty bogus, and the defamation and invasion of privacy claims could be as well. So I have an especially difficult time understanding how this lawsuit is economically rational. Finally, given the website modifications that Smith has already made, I can't figure out why BidZirk thinks that a preliminary injunction is worth pursuing all the way to the Fourth Circuit.
Of course, there is always the possibility that this lawsuit is not about the merits and instead is just an abusive effort to punish a blogger for speaking out.... In any case, the seeming illogic of this lawsuit illustrates why there are comparatively few blog-related lawsuits. Most of the time, it just doesn't make sense to sue over a blog post.
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Would this be subject to a SLAPP motion in CA? If so, do other states have these types of laws?
It seems like -- as you point out -- the suit is being brought to deter. Would the underlying rules otherwise provide for fees for the blogger?
Posted by: Venkat at November 21, 2006 03:17 PM
Other states have anti-SLAPP laws (not sure if SC does). This case may very well be covered under anti-SLAPP laws. I believe most anti-SLAPPs do have fee-shifting provisions. Eric.
Posted by: Eric Goldman at November 21, 2006 04:32 PM
You say in your blog post about the Bidzirk case that it is a low-profile blog and it doesn't make sense for a small company to sue. However, since it is such a small company, if anyone googles the company name they quickly get the blog post in the top 5-10 results. So I think the motivation for the suit is an injunction (even though it is a weak legal argument) to remove the blog post for fear that it will deter business. Moreover, by bringing a lawsuit that may bring more attention to the company and the dispute from lawyers, but probably not from the general public who is more likely to just google the company name.
If this was a big company where there was lots of Internet chat about it and the low profile blog post didn't show up high in search engine results, then I think your point is correct that the lawsuit draws extra attention and is not worth it. But since that isn't the situation in this case, I think the plaintiff's motivation makes sense.
Posted by: Keith Apple at November 22, 2006 07:35 AM
Keith, thanks for your comment. FWIW, when I wrote this blog post yesterday, the post in question was the #9 search result in Google for "BidZirk." In my book, this is effectively invisible. However, a blog post on the lawsuit (http://analysis.threatswatch.org/2006/04/constitutionally-protected-blo/) was #5--much more visible. It will be interesting to see where this blog post ranks when fully indexed; it wouldn't surprise me if this post gets into the top 5 search results for BidZirk. Thus, I stand by my point that if the plaintiff's goal was to marginalize the criticism in the blog post, suing over it was a probable misstep. Eric.
Posted by: Eric Goldman at November 22, 2006 05:54 PM