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September 01, 2010
Griping Patient Goes Too Far Posting Fake Content in Doctor's Name--Eppley v. Iacovelli
By Eric Goldman
Dr. Barry Eppley v. Lucille Iacovelli, 2010 WL 3282574 (S.D. Ind. Aug. 17, 2010). The CMLP entry. The Internet is filled with commentary about this long-running saga if you want more information.
Dr. Eppley is a plastic surgeon. In 2001, he performed a facelift for Iacovelli. After a few months, Iacovelli complained of an obstructed airway. Dr. Eppley believes there is no way the facelift caused the obstructed airway. Iacovelli apparently saw it differently, and she took to the Internet to blame and criticize Dr. Eppley--allegedly including (directly or through cohorts) making fake postings in Dr. Eppley's name and publishing critical content at domain names that include Dr. Eppley's name. Dr. Eppley claims that this criticism has cost him a lot of money; at least 1 or 2 patients a month cancel appointments with him (presumably because the search results scare them off), and an unknown number never contact him in the first place. He has also fought back with a reputation management campaign costing $2-3k/month. Dr. Eppley has a registered trademark in his name.
[note: the court says Iacovelli did not properly contest Dr. Eppley's summary judgment motion, so the court appeared to accept Dr. Eppley's statement of facts. It’s unclear if Iacovelli’s no-show related to her failing health; but in a sad development, she passed away on August 2, before this ruling was issued.]
The court’s description makes Iacovelli sound like a fairly typical griper. For example, the court says:
Ms. Iacovelli has utilized Dr. Eppley's name in tabs, links, websites and throughout her campaign of internet disparagement, with the conscious design of driving internet traffic away from Dr. Eppley's authorized websites and toward her own.
Right, that’s what gripers do. However, there is one key exception: the fake postings in the doctor’s name. The court drops the boom on Iacovelli for this. The court grants Dr. Eppley summary judgment for defamation and false light (although I think the false light actually should have been normal defamation) and says Dr. Eppley is entitled to damages and attorneys' fees, both to be quantified in a later proceeding. Given Iacovelli’s death, I’m not sure any of that will matter.
The allegations in the case also suggest that the false postings might have constituted criminal epersonation in California if Gov. Schwarzenegger signs the pending bill into law. The court even says Iacovelli engaged in "virtual identity theft" of Eppley's trademark. Rhetorically, this is a little over-the-top; I half-expected the court also to say that Iacovelli shanghai'ed his identity.
However, in the zeal to take down Iacovelli, the court goes too far in concluding that Iacovelli committed a false designation of origin. There are several problems with this discussion.
First, Iacovelli allegedly misdesignated the origin of content, rather than the origin of marketplace offerings. As the court says:
The creation of internet sites with names such as "barryeppleyplasticsurgeon.com" and "barry-eppley.owndoc.com," the undertaking to create a series of "Eppley sites," and the appropriation of Dr. Eppley's name and likeness in social network and other websites demonstrate a deliberate effort to attract internet users to the websites controlled by Ms. Iacovelli and her associates and to create the false impression that they are websites and pages created or authorized by Dr. Eppley.
My position is that the Lanham Act applies to misrepresentations about marketplace offerings, not misrepresentations about the *source of information* about marketplace offerings. See my deconstruction of the SMJ Group v. 417 Lafayette Restaurant case. So in my opinion, structurally, the Lanham Act doesn’t apply to misdesignated content about Dr. Eppley’s services.
Second, even if the Lanham Act applies to falsely sourced content, Iacovelli’s griping seemingly lacks the requisite commerciality to satisfy the Lanham Act. Unfortunately, the court strains itself to find commerciality:
The record indicates an effort to elevate Ms. Iacovelli to celebrity status by publicizing her as the "star" of an HBO documentary and to promote the market for the book about her that Mr. Bergeron is writing. Ms. Iacovelli, furthermore, has asserted that her internet publications are regarded by her as her primary occupation, and that she operates them on a "sole-proprietor" basis. It is apparent that Ms. Iacovelli has sought to enhance her fame and notoriety by associating her story and her defamatory message with Dr. Eppley's name. A desire to achieve derivative celebrity status by diverting the internet traffic arising from Dr. Eppley's trademarked name constitutes a calculated effort to take advantage of his name recognition in order to boost the status and attention paid to her "sole-proprietor" sites. In addition, some of the websites and postings have included advertising content, apparently generating advertising revenue or other valuable consideration.
I disagree with the last point that ad-supported content should qualify as commercial activity under the Lanham Act. See my Online Word of Mouth article. But I'm more interested in the first argument--that a desire for fame, even if it doesn't actually translate into revenues, is a commercial activity. It reminds me a little of the Napster Ninth Circuit opinion, where the court found that Napster had a direct financial interest in the infringing P2P files being shared because the files were a "draw" to the system, even though Napster had not actually earned a dime of revenue. If no revenue = direct financial benefit, then I guess a desire for fame = commercial activity. Maybe the judge was overly influenced by Goldhaber's Attention article from the 1990s.
In the same paragraph, the court concedes "Ms. Iacovelli has also been motivated in part by non-commercial goals, but this does not affect her trademark transgressions." Um, say what? Could you go over that again?
The court’s finding of false designation of origin is misguided and unsupportable. However, it’s also clear that false content isn’t cool. Consider this ruling as another data point in the developing legal precedent about inauthentic online content. See also the FTC’s settlement with Reverb, Lifestyle Lift’s settlement with the New York Attorney General’s office, the RealSelf v. Lifestyle Lift lawsuit and settlement, Meyerkord v. Zipatoni and Buckles v. Brides Club. It’s already pretty clear that adjudicators won’t tolerate inauthentic online content.
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