Lifestyle Lift Tries to Use TM Law to Shut Down User Discussions; Website Countersues for Shilling–Lifestyle Lift v. RealSelf

By Eric Goldman

Lifestyle Lift Holding, Inc. v. RealSelf Inc., 2:08-cv-10089-PJD-RSW (complaint filed Jan. 7, 2008 and answer/counterclaims filed March 3, 2008)

[disclosure note: I have done some legal work for RealSelf, including some limited counseling on this lawsuit]

No matter how many times I see it–and in the Internet era, I see it all too frequently–I always shake my head in disappointment and frustration when a company uses trademark law to lash out against unflattering consumer reviews. To these companies, trademark law is a cure-all tonic for their marketplace travails, and trademark doctrine is so plastic and amorphous that defendants have some difficulty mounting a proper defense. As a result, all too frequently, the threat of a trademark lawsuit causes the intermediary to capitulate and excise valuable content from the Internet. Fortunately, a defendant has decided to fight back and resist the pressure to succumb to unmeritorious trademark claims. See the press release.

I don’t know much about Lifestyle Lift and its relative pros and cons as a cosmetic surgery. Fortunately, there are thousands of Lifestyle Lift customers who do, and a large number of them have shared their opinions publicly on RealSelf, a website that allows consumers to discuss anti-aging products and services. I think it’s fair to say that many of the consumer-submitted reviews of Lifestyle Lift are unfavorable–exactly the kind of word of mouth that prospective consumers should consider before undergoing a Lifestyle Lift surgery.

But this kind of negative buzz can be fatal to providers of health/beauty products and services, especially given the faddishness of that market. As a result, Lifestyle Lift has resorted to legal mechanisms to prop up its business. (Indeed, Lifestyle Lift is no stranger to court; see this PACER report on their litigation history in federal court).

In doing so, Lifestyle Lift has limited tools to go after RealSelf for consumer-submitted reviews. After all, 47 USC 230 clearly eliminates almost all of RealSelf’s possible liability for those reviews. However, 47 USC 230 leaves open federal trademark claims–hence, Lifestyle Lift has embraced trademark law as its recourse to wipe the negative reviews off RealSelf and keep them from influencing prospective consumers.

(Lifestyle Lift could always go after individual consumers submitting negative reviews…if they have a meritorious claim. Given Lifestyle Lift’s litigiousness, it wouldn’t surprise me if they bring some of these lawsuits regardless of merit).

In its answer, RealSelf goes on the offensive and alleges that Lifestyle Lift directly or indirectly posted shill reviews to the Lifestyle Lift discussion, thereby breaching RealSelf’s user agreement. Off the top of my head, I can’t think of another lawsuit where the message board operator sued a company for shill postings, so I think this case may be breaking important new legal ground. If in fact Lifestyle Lift was trying to manipulate the perceptions of prospective consumers through shill reviews, I hope they are brought to justice for their efforts to pollute the information environment.

More generally, regardless of who wins these specific lawsuits, Lifestyle Lift will never succeed at stifling negative discussion about its offerings. This may just be another painful lesson in the power of online word of mouth.