In its October 22, 2007 Order granting defendant Philip Smith’s motion for summary judgment, the District Court of South Carolina dismissed defamation, trademark infringement, and invasion of privacy claims brought by plaintiff BidZirk LLC, an auction listing company.
The claims arose out of the pro se defendant-blogger’s publication of articles on his blog, featuring plaintiff’s trademark, that were critical of plaintiffs’ eBay auction listing business. Plaintiffs asserted that defendant’s use of their mark in an article critical of plaintiff’s business tarnished their famous trademark in violation of the Federal Trademark Dilution Act (“FTDA”). The Court held plaintiff’s trademark dilution claims failed because defendant used the mark in connection with “news reporting and news commentary,” a non-actionable use under the Federal dilution statute.
Pursuant thereto, a party cannot be found guilty of diluting the mark of another if the mark is used in “news reporting or news commentary.” 15 U.S.C. § 1125(c)(4)(C). The Court held that Smith’s use of the trademark was, in fact, a protected use in the course of “news reporting or news commentary.”. The court noted that, while “not all bloggers are journalists, some bloggers are, without question, journalists.” The Court had examined “the content of the material, not the format, to determine whether it is journalism.” The Court found that it was not written solely to denigrate plaintiffs but, rather, it was written for the purpose of conveying information to the public about the use of auction listing companies, based on the author’s personal experience and supported by his research. It also provided a checklist to aid consumers in selecting such companies. These attributes “evidences [an] intent to report what [Smith] believed was a newsworthy story for consumers.”
The court further dismissed plaintiffs’ defamation claim, finding the challenged statements non-actionable statements of opinion. Said the Court, “Opinion statements, defamatory or otherwise, are not actionable unless they contain provably true or false connotations.” The statements were an opinion statement that could not be fairly characterized as true or false and, which statements included terms that have, “different meanings to different people.” Thus, because the statement was not capable of being characterized as false, there was no liability for defamation.
Finally, the Court dismissed plaintiffs’ invasion of privacy claim, arising from a link found on Smith’s blog to a picture of plaintiffs found elsewhere on the Internet, accompanied by Smith's commentary. According to plaintiffs, the accompanying text implied that they were ‘irresponsible and overcommitted’ and impermissibly cast them in a false light. The Court rejected this claim, finding that South Carolina does not recognize a claim for false light invasion of privacy and, even if it did, the claim would fail as the article did not cast plaintiffs in a false light and ("Nothing about Smith’s statements would be highly offensive to a reasonable person,” an essential prerequisite to a false light invasion of privacy claim").
Similarly, plaintiffs’ ‘wrongful appropriation of personality’ invasion of privacy claim failed: A required element of such a claim is the “intentional [non-consensual] use of the plaintiff’s name, likeness, or identity by the defendant for his own benefit,” which was missing here. Smith did not use a picture of plaintiffs but, instead, only linked to one found on another site. In addition, plaintiffs waived any privacy right they had in the photograph in question by consenting to its use on the other non-password protected internet site. Finally, there was no apparent benefit to Smith by his use of the link.
The Court sua sponte sanctioned plaintiffs’ attorney, Kevin Elwell, under Rule 11, for filing a lis pendens against Smith’s condominium. The Court fined Elwell $1,000, which he directed be paid directly to Smith.
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