Investment Bank Says Criticism Is Trademark Infringement; Gets Misplaced Injunction Against Web Forum

from the not-good dept

So many companies (and individuals) get up in arms over a bit of criticism, assuming that anything they don’t like must be illegal. On top of that, they regularly blame the owners of the websites where that criticism occurs, rather than whoever actually created the criticism. Usually the courts see through this stuff, but sometimes companies are able to get around all of that with some quick lawyering. In a particularly egregious example, the investment bank Houlihan Smith got upset at the websites 800notes.com and Whocallsme.com, both run by Julia Forte as forums where people can discuss telemarketing practices (we’ve pointed out how Forte has been fighting other misguided legal attacks in the past as well). As with many companies that find people criticizing themselves on Forte’s website, Houlihan Smith demanded that she remove comments. She responded by pointing out that company representatives are free to respond to the complaints in the comments.

Instead, it appears that Houlihan Smith went straight to court… and got a temporary restraining order against Forte that prohibits people from posting comments — even if they’re factual — about Houlihan Smith to Forte’s websites. So how did they get such a temporary restraining order when pretty much all case law notes that Forte is protected by Section 230? Well, it looks like they’re claiming that the critical comments (and there were lots of them) weren’t just defamatory (the usual claim) but were trademark infringement — which, by way of judicial accident is not covered by Section 230. But people posting their opinions or factual information about a company cannot be trademark infringement. The company also claims a violation of the “right of publicity,” because some employees are named. Of course, “right of publicity” is supposed to be used to prevent you from using someone’s name or likeness in an advertising context. Someone accurately claiming that “so-and-so called me” is not a violation of anyone’s right of publicity. Furthermore, the company apparently only gave Forte 90 minutes of notice via email that it was going to court (800 miles from where she lives) to get the restraining order.

Totally blocking a website from allowing people to express their opinions and criticisms of a company’s telemarketing practices seems like a blatant violation of the First Amendment.

Either way, it seems like Houlihan Smith and its lawyers haven’t realized a basic fact about the internet: if you try to stifle free speech that you don’t like, it only draws a hell of a lot more attention to that speech. Perhaps Houlihan Smith would have been better off responding to the criticism, rather than using questionable legal claims to try to silence an entire forum.

Filed Under: , , ,
Companies: 800notes.com, houlihan smith

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “Investment Bank Says Criticism Is Trademark Infringement; Gets Misplaced Injunction Against Web Forum”

Subscribe: RSS Leave a comment
23 Comments
Anonymoussays:

So ridiculous. NewEgg is a great example of how comments can work to benefit a company. A customer can write a bad review of a product and, if the company chose to remedy the situation, their response is displayed below the bad review. That simple gesture can build an enormous amount of credibility for the company, and everyone walks away happy.

Winstonsays:

oh really?

Ever heard, “opinions are like a-holes, every body’s got one”? The first amendment doesn’t allow an individual to make false or reckless statements. Virtually all of the people airing out their emotional baggage on Forte’s site(s) are receptionists and the like, people who are paid to answer the phones. If they don’t like being gatekeepers, the conclusion is obvious…
These sites also allow comments outside their scope, which have nothing to do with telemarketing practices whatsoever. Rants from former employees with an axe to grind(who, by the way, are former for a reason) have no place in such forums.

naschsays:

Re: oh really?

These sites also allow comments outside their scope, which have nothing to do with telemarketing practices whatsoever. Rants from former employees with an axe to grind(who, by the way, are former for a reason) have no place in such forums.

What does any of that have to do with this restraining order?

btr1701says:

Re: oh really?

Virtually all of the people airing out their
emotional baggage on Forte’s site(s) are
receptionists and the like

I wasn’t aware there was an exception to the 1st Amendment excluding speech which constitutes “emotional baggage”.

Since the text of the Constitution itself certainly doesn’t say or imply any such thing, I invite you to cite the case law which supports this heretofore unheard of exception.

btr1701says:

Re: oh really?

These sites also allow comments outside their
scope, which have nothing to do with telemarketing
practices whatsoever.

I wasn’t aware that a web site is required to restrict speech to a limited “scope” or topic in order to enjoy the protection of the 1st Amendment.

Since the text of the Constitution itself certainly doesn’t say or imply any such thing, I invite you to cite the case law which supports this heretofore unheard of requirement.

Anonymoussays:

Maybe if companies observed the people’s desire when they say “Add me to your do not call list”, they would have fewer comments about how they continue to call people even though they are on the “do not call list” This seemed to be the case with at least a few of the cached “phone notes” entries.

The “do not call registry” is another way to make the calls stop. The DNC rules do not give consumers a private right of action, but the Telephone Consumer Protection Act does. The Telephone Consumer Protection Act also allows you to sue telemarketers for various violations.

You can start the process and even file a complaint here: http://www.donotcall.gov/

Jacksays:

oh really??

Winston’s comment is entirely correct. The First Amendment has nothing to do with malicious and false comments posted on the web or anywhere for that matter. Houlihan was right to ask Forte to remove the false and defamatory comments from her site – why wouldn’t she simply comply with its request? The postings Houlihan asked her to take down, as Winston points out, have nothing to do with the premise of her website – none of them concerned telemarketing calls, but were allegedly posted by ex-employees who were unable to keep a job – that anyone would post such idiotic comments about a former employer speaks volumes as to why they were probably fired in the first place.

naschsays:

Re: oh really??

Houlihan was right to ask Forte to remove the false and defamatory comments from her site

Don’t you have to demonstrate in court that the comments are defamatory?

The postings Houlihan asked her to take down, as Winston points out, have nothing to do with the premise of her website – none of them concerned telemarketing calls, but were allegedly posted by ex-employees who were unable to keep a job – that anyone would post such idiotic comments about a former employer speaks volumes as to why they were probably fired in the first place.

What in the world does any of that have to do with whether the comments were protected speech, or libel?

Add Your Comment

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...
Loading...
Older Stuff
13:40 It's Great That Winnie The Pooh Is In The Public Domain; But He Should Have Been Free In 1982 (Or Earlier) (35)
12:06 Norton 360 Now Comes With Crypto Mining Capabilities And Sketchy Removal Process (28)
10:45 Chinese Government Dragnet Now Folding In American Social Media Platforms To Silence Dissent (14)
10:40 Daily Deal: The 2022 Ultimate Cybersecurity Analyst Preparation Bundle (0)
09:29 A Fight Between Facebook And The British Medical Journal Highlights The Difficulty Of Moderating 'Medical Misinformation' (9)
06:29 Court Ruling Paves The Way For Better, More Reliable Wi-Fi (4)
20:12 Eighth Circuit (Again) Says There's Nothing Wrong With Detaining Innocent Minors At Gunpoint (15)
15:48 China's Regulatory War On Its Gaming Industry Racks Up 14k Casualties (10)
13:31 Chinese Government Fines Local Car Dealerships For Surveilling While Not Being The Government (5)
12:08 Eric Clapton Pretends To Regret The Decision To Sue Random German Woman Who Listed A Bootleg Of One Of His CDs On Ebay (29)
10:44 ICE Is So Toxic That The DHS's Investigative Wing Is Asking To Be Completely Separated From It (29)
10:39 Daily Deal: The 2022 Complete Raspberry Pi And Arduino Developer Bundle (0)
09:31 Google Blocked An Article About Police From The Intercept... Because The Title Included A Phrase That Was Also A Movie Title (24)
06:22 Wireless Carriers Balk At FAA Demand For 5G Deployment Delays Amid Shaky Safety Concerns (16)
19:53 Tenth Circuit Denies Qualified Immunity To Social Worker Who Fabricated A Mother's Confession Of Child Abuse (35)
15:39 Sci-Hub's Creator Thinks Academic Publishers, Not Her Site, Are The Real Threat To Science, And Says: 'Any Law Against Knowledge Is Fundamentally Unjust' (34)
13:32 Federal Court Tells Proud Boys Defendants That Raiding The Capitol Building Isn't Covered By The First Amendment (25)
12:14 US Courts Realizing They Have A Judge Alan Albright Sized Problem In Waco (17)
10:44 Boston Police Department Used Forfeiture Funds To Hide Purchase Of Surveillance Tech From City Reps (16)
10:39 Daily Deal: The Ultimate Microsoft Excel Training Bundle (0)
09:20 NY Senator Proposes Ridiculously Unconstitutional Social Media Law That Is The Mirror Opposite Of Equally Unconstitutional Laws In Florida & Texas (25)
06:12 Telecom Monopolies Are Exploiting Crappy U.S. Broadband Maps To Block Community Broadband Grant Requests (7)
12:00 Funniest/Most Insightful Comments Of 2021 At Techdirt (17)
10:00 Gaming Like It's 1926: Join The Fourth Annual Public Domain Game Jam (6)
09:00 New Year's Message: The Arc Of The Moral Universe Is A Twisty Path (33)
19:39 DHS, ICE Begin Body Camera Pilot Program With Surprisingly Good Policies In Place (7)
15:29 Remembering Techdirt Contributors Sherwin And Elliot (1)
13:32 DC Metro PD's Powerful Review Panel Keeps Giving Bad Cops Their Jobs Back (6)
12:11 Missouri Governor Still Expects Journalists To Be Prosecuted For Showing How His Admin Leaked Teacher Social Security Numbers (39)
10:48 Oversight Board Overturning Instagram Takedown Of Ayahuasca Post Demonstrates The Impossibility Of Content Moderation (10)
More arrow
This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it