Blog Comments as Evidence of Consumer Confusion–QVC v. Your Vitamins
QVC, Inc. v. Your Vitamins, Inc., 2010 WL 2985801 (D. Del. July 27, 2010)
This case involves two competitive products. Lessman, the principal behind one of the products, posted 4 blog posts deconstructing his competitor’s products. The competitor sued Lessman and others for false advertising and related claims. The court discusses introducing comments to the 4 blog posts as evidence:
To the extent plaintiffs address implied falsity, they offer responsive posts to Lessman’s blogs as evidence of actual confusion.FN14 (D.I. 34 at 5 (“no one has written to express relief that any cancer risk is abated by the small quantities of unabsorbabilityl”)) There are sixty-seven (67) comments to the 99% additives article FN15 and fifty (50) comments to the Revesterol article.FN16 Though many of these are negative to QVC (as compared to simply supportive of Lessman), only a few correlate a decision not to buy Nature’s Code Hair with Lessman’s particular statements as discussed above.
FN14. The parties have each submitted statements regarding the traffic on Lessman’s blog. At oral argument, defendants confirmed that there is no way to determine the number of lawyer or staff visits to Lessman’s site as compared to consumer visits. (D.I. 41 at 2) Notwithstanding, the number of “hits” on a given page are not indicative of actual confusion imparted by the substance of Lessman’s messages. Insofar as the court does not reach the issue of harms to the respective parties, the court need not evaluate the evidence further. Plaintiffs’ motion to strike defendants’ submissions regarding website traffic is, therefore, denied as moot.
FN15. As of July 20, 2010. The 99% additives article was posted by Lessman in January 2010. All but two comments were posted in January 2010. One substantive comment (negative to Lessman) was posted in April 2010.
FN16. Certain individuals engaged in online conversations via the blogs and posted several comments; therefore, there were less than 67 and 50 total responders to each article, respectively.
Only three posts to the 99% article appear to address HA and/or cancer. One asks Lessman whether HA poses a risk in creams or lotions.FN17 Another generally reflects that QVC is “criminal” for posing risks to “people’s health.” One reader stated that “I did read that HA was linked in some cases [to] cancers,” but stated that the “primary reason” for discontinuing the use of Nature’s Code Hair was how it made her feel (edgy and anxious). Similarly, four reiterate the 99% number or the high percentage of additives contained in Nature’s Code Hair. Only one appears to address silica, and it came in the context of a question to Lessman regarding the silica in Healthy Hair. None of the comments to the Resveratrol article relate a decision not to purchase Resveratrex® with the source of resveratrol or sugar content. FN18 The court finds that plaintiffs have not demonstrated a “likelihood of success” with respect to implied falsity on this limited record and, therefore, need not evaluate the remaining preliminary injunction factors. FN19
FN17. Lessman responded to this post that he can see no risk by HA in topical products. A later blogger thanked Lessman for this additional HA information.
FN18. Plaintiffs stated at oral argument that the blogs and videos at issue are linked-to on other media, such as Facebook®. It is unclear on this record the extent of such dissemination, and the court does not have before it any consumer comments from other websites.
FN19. The court need not definitively determine, therefore, whether blog posts should be deemed relevant and credible evidence (generally and, in this context, as evidence of consumer confusion)-an issue of first impression for this court. Blog posts such as those in this case may be more reliable than broad-based surveys, insofar as they represent direct feedback from consumers specifically interested in the product(s) at issue, although concerns regarding such posts’ authenticity are not ill-founded. Courts have reached differing conclusions on the issue. Compare Blue Bell Creameries, LP. v. Denali Co., LLC, Civ. No. 99-594, 2008 WL 2965655 at *5 & n.4 (S.D.Tex. July 31, 2008) (declining to admit blog entries as evidence of actual consumer confusion in a trademark infringement case stating that they “lack[ed] sufficient indicia of reliability” and “[n]othing is known about the persons who made the entries, about whether they are related in any way to either party or whether they are describing true events and impressions”); with Volkswagen AG v. Verdier Microbus and Camper, Inc., Civ. No. 09-231, 2009 WL 928130 at *4 (N.D.Cal. Apr. 3, 2009) (allowing internet postings and blogs “suggest[ing] that consumers believe the Verdier vehicle is a [Volkswagen] product” as evidence weighing in favor of actual consumer confusion). See also, gen., Victaulic Co. v. Tieman, 499 F.3d 227, 236 (3d Cir.2007) (web pages must be authenticated before they can be admitted pursuant to Federal Rule of Evidence 902).
Just to reiterate the language in FN 19, the court says “Blog posts such as those in this case may be more reliable than broad-based surveys, insofar as they represent direct feedback from consumers specifically interested in the product(s) at issue, although concerns regarding such posts’ authenticity are not ill-founded.” This does present a new source of evidence for litigants compared to the information available pre-Internet, when it was hard to find consumers publishing their thoughts about various brands.