Seattle Trademark Lawyer

I’m giving a talk next week about protecting your brand on social networks.

The theme of my talk is that a trademark owner’s ability to stop others from saying bad things about its brand is limited.

Quite limited.

Just ask Kenneth Seaton, owner of the Grand Resort Hotel and Convention Center. He sued TripAdvisor LLC, who runs the TripAdvisor travel Web site. TripAdvisor named the Grand Resort Hotel to its “2011 Dirtiest Hotels” list. You can guess its commentary wasn’t very favorable.

Mr. Seaton asserted claims for defamation, false-light invasion of privacy, trade libel/injurious falsehood, and tortious interference with prospective business relationships.

The district court threw out the case in short order. It found Mr. Seaton could not prevail on his claim given TripAdvisor’s broad First Amendment protection.

On Aug. 28, the Sixth Circuit affirmed. It found: “Seaton failed to state a plausible claim for defamation because TripAdvisor’s placement of Grand Resort on the ‘2011 Dirtiest Hotels’ list is not capable of being understood as defamatory; it is protected, nonactionable opinion. TripAdvisor’s use of the word ‘dirtiest’ constitutes loose, hyperbolic language, and the general tenor of the ‘2011 Dirtiest Hotels’ list makes clear that placement on the list cannot reasonably be interpreted as stating actual facts about Grand Resort.”

It added that Mr. Seaton’s other claims “appear to attempt to bypass the First Amendment” and, therefore, must similarly fail.

Brand owners should take note. They can take vigorous steps to protect against damage to their brand through confusingly similar trademark use, false advertising, and other forms of unfair competition. However, they should know their rights have limits — and the First Amendment is one of them.

As the Grand Resort Hotel demonstrates, trying to silence critics or erase bad reviews by going to court is a bad idea.

Links to a good write-up and case documents available here via the Digital Media Law Project.

The case cite is Seaton v. TripAdvisor LLC, __ F.3d __, No. 12-6122 (6th Cir. Aug. 28, 2013).