Another lawsuit against PissedConsumer.com, another motion to dismiss. The preliminary statement:
Defendant Opinion Corp. is, as set forth in the Complaint, the corporate owner of an Internet website called PissedConsumer.com. That website is an indelicately but accurately named “gripe site” – a consumer forum that permits third parties to log on and post criticism or praise of businesses. Plaintiff AmeriGas Brands, LLC (“AmeriGas”) is a propane gas distributor – the nation’s largest – and certain unknown third parties have posted unflattering comments about AmeriGas on PissedConsumer.com. AmeriGas is not suing those parties. Instead, it is suing Opinion Corp., claiming trademark infringement, unfair competition and other related torts of competition. No legal basis exists for AmeriGas to do so, however.
There is no unfair competition here, because AmeriGas and PissedConsumer.com are not competitors. Under the Third Circuit's simplified test for likelihood of confusion in nominative fair use cases, AmeriGas cannnot possibly state a claim for relief.
At root, AmeriGas has made out a claim for defamation, without using the word “defamation” or suing the alleged defamer. Instead, it has dressed its defamation claim up as a federal trademark lawsuit to avoid the sting of guaranteed dismissal under Section 230 of the Communications Decency Act (47 U.S.C. § 230), even while including state law claims which this Court has no discretion but to dismiss under that statute. AmeriGas has done this because it deems it easier to convince this Court to silence criticism of it under a spurious unfair competition theory than to address its critics on their merits, either on PissedConsumer.com or elsewhere.
AmeriGas’s complaint is premised on the negation of fundamental constitutional principles and controlling law regarding prior restraint of free speech. The Complaint has nothing at all to do with consumer confusion, the touchstone of a trademark infringement claim, in the use of AmeriGas’s trademark – its name – in descriptive content, descriptive titles or as part of PissedConsumer.com sub-domains. Nor should the Court place any stock in the kitchen-sink full of random torts of competition, under state and federal law, thrown into AmeriGas’s pleading as ballast. AmeriGas’s attempt to use the law of tort as a proxy for censorship, and to both ignore and bypass an explicit federal statute meant to protect publishers of third-party criticism from tort claims, should be rejected.